Attorneys Fees and Costs at issue at Providence Business Calendar

Rhode Island Superior Court Associate Justice Michael A. Silverstein, who runs the Providence County Business Calendar, issued a 19-page decision in Ferris Avenue Realty, LLC v. Huhtamaki, Inc. this week regarding costs and attorneys fees.

Plaintiff, represented by Providence attorneys Richard J. Welch and Michael T. Eskey, was awarded approximately $250k by a jury and sought more than $1 million in counsel fees incurred in winning the case under its indemnity agreement with the defendant seller.

Defendant, represented by Thomas W. Lyons III of Providence and Stephen J. Darmody of Florida, opposed the large amount.

Judge Silverstein found an award of $734,199.73 in fees and costs to be reasonable stating, “The Court cannot say that the prevailing party’s fees sought in this case are reasonable given the amount in controversy and the amount recovered… This awards the full amount of costs and expenses incurred by [the plaintiff], but reduces attorneys’ fees to the amount half-way between the amount of fees requested by the Plaintiff (the unadjusted lodestar amount) and the jury’s award of damages.”

Read the full opinion here.

Filing Fee Increases $50 in RI Federal Court

The United States District Court for the District of Rhode Island announced this week that at its September 2012 session, the Judicial Conference approved an amendment to the District Court Miscellaneous Fee Schedule to add a $50 administrative fee for filing a civil action, suit, or proceeding in a district court.

Effective May 1, 2013, pursuant to this amendment, all federal district courts will begin charging a $50 administrative fee for filing a civil action, suit or proceeding in a district court, in addition to the $350 filing fee, thereby increasing the total filing fee to $400.00. The administrative fee does not apply to applications for a writ of habeas corpus or to persons granted in forma pauperis status under 28 U.S.C. § 1915.

For more information please visit the What’s New section of the Court’s website.

SCORI issues two administrative orders

Chief Justice of the Rhode Island Supreme Court, Paul A. Suttell has recently appointed Superior Court Associate Justice Judith Colenback Savage as a member of the Permanent Advisory Committee on Women and Minorities in the Courts for a term expiring on February 2, 2015.

Chief Justice Suttell also ordered Melissa E. Darigan, Esq., Carly B. Iafrate, Esq., and Mortimer C. Newton, Esq. as members of the Committee on Character and Fitness for three (3) year terms commencing on January 21, 2013 and expiring on January 20, 2016 and designated Gerard Coyne, Esq. as Chair and Debra A. Saunders, Esq. as Vice Chair of the Committee.

SCORI Oral Argument Calendar for January and February

The Supreme Court of Rhode Island has posted their calendar for oral arguments for January 23rd and 24th as well as February 5-7, 2013.  Click here to read the calendar.

New Rhode Island Superior Court Administrative Orders

Last month, Rhode Island Presiding Justice Alice B. Gibney issued an Administrative Order on Superior Court judicial assignments through June 30, 2013.  Click here to read the order.

Also, Rhode Island Superior Court Associate Justice Luis M. Matos issued a new administrative order last week governing the dispositive motion calendar.  Click here to read the Order.

 

Rhode Island Federal Bench/Bar Committee Meeting on January 9th

The Federal Bench/Bar Committee of the Rhode Island Bar Association will hold its next meeting on January 9, 2013, at 4:00 PM in the Jury Assembly Room of the United States District Court.  The agenda for the January 9, 2013 meeting is at this link.

 

 

Proposed Amendments to Articles II, IV and V of the Rhode Island Supreme Court Rules

On February 14, 2013 at 9:00 a.m., the Rhode Island Supreme Court will conduct a public hearing on proposed amendments to Articles II, IV and V of its rules.  Written comment and notice of intent to present oral comment are due to the Supreme Court Clerk on or before Thursday, January 31, 2013.

Former RI Supreme Court Chief Justice Joseph R. Weisberger Passes Away

Sad news:

Retired state Supreme Court Chief Justice Joseph R. Weisberger has died, according to Craig Berke, spokesman for the Rhode Island Judiciary.

He was 92 and in the years since his retirement, Weisberger had helped lead the court’s mediation program.

Weisberger, of East Providence, served as chief justice from 1993 to 2001. Before that, he was a Superior Court judge and prior to his appointment to the bench, he served as a Republican in the state Senate.

Attorney General Peter Kilmartin issued this statement:

“Justice Weisberger was amongst the giants of our judicial system. His keen intellect was on display in every opinion he authored and the respect he garnered went well beyond the borders of Rhode Island.  Although we mourn his passing, we can take comfort that his service will positively affect all Rhode Islanders for generations to come,” said Attorney General Kilmartin.  “On behalf of the entire staff of the Office of Attorney General, our thoughts and prayers are with his family and loved ones.”

 

Patricia A. Sullivan sworn in as Rhode Island Federal Magistrate Judge

The Providence Journal reports on Monday’s swearing-in of Patricia A. Sullivan, an attorney with over 30 years of experience, as Rhode Island’s first female federal magistrate judge.

A former partner with Edwards Wildman Palmer LLP, Sullivan replaced U.S. Magistrate Judge David L. Martin after his retirement Sept. 30.

(…) “I am humbled by the awesome responsibility,” Sullivan, 61, said.

Her 38 days on the job to date, listening to the stories of people, small businesses and large corporations, have been more powerful than she could have imagined, she told the crowd.

She vowed to follow the words of Socrates and answer wisely, consider soberly and decide impartially.

Senior 1st U.S. Circuit Court of Appeals Judge Bruce M. Selya was among the speakers to praise Sullivan as a person of intelligence, industry and integrity.

Deming E. Sherman, her colleague of 34 years, credited her as a trailblazer as the first mother in the firm who spent Saturdays in the office with her two young sons.

Her youngest brother, Michael J. Sullivan, said she possessed the integrity, knowledge of the law, diligence and compassion present in the finest judges.

Sullivan’s selection was universally-praised as she is well-liked and well-regarded in the legal community.  Legal insiders predict that she will be a terrific jurist.

Courts, States remain Divided over Cell Phone Searches

The New York Times today reviewed the state of the law regarding the legality of law enforcement searches of cell phones without warrants today.

Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide.

(…)“The courts are all over the place,” said Hanni Fakhoury, a criminal lawyer with the Electronic Frontier Foundation, a San Francisco-based civil liberties group. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.”

The issue will attract attention on Thursday when a Senate committee considers limited changes to the Electronic Communications Privacy Act, a 1986 law that regulates how the government can monitor digital communications. Courts have used it to permit warrantless surveillance of certain kinds of cellphone data.  A proposed amendment would require the police to obtain a warrant to search e-mail, no matter how old it was, updating a provision that currently allows warrantless searches of e-mails more than 180 days old.

Recently, in Rhode Island, in the case of State v. Patino, C.A. No. 10-1155, Rhode Island Superior Court Judge Judith C. Savage ruled that Michael Patino, a man accused of the 2009 killing of his girlfriend’s 6-year-old son, (1) had a reasonable expectation of privacy in his text messages and (2) that evidence from his cell phone was collected illegally, before police obtained search warrants.

The Court also ruled that because of the illegal search, almost all the evidence obtained by police – including the text messages, all cell phones and their contents, all cell phone records, and critical portions of the Defendant‘s videotaped statement and his written statement given to the police – was tainted and could not be used at trial.

“Cell phones have replaced telephones. People send and receive billions of text messages to and from their cell phones daily. Text messaging, especially among young adults, has become an oft-employed substitute for face-to-face conversations, cell phone conversations, or email. Accordingly, this court finds that it is objectively reasonable for people to expect the contents of their electronic text messages to remain private.

Read the full opinion here.

FBA Event – The Lessons of Central Falls: Municipal Insolvency and the Amazing World of a Chapter 9 Restructuring

The Rhode Island Chapter of the Federal Bar Association is hosting a Thursday, September 6, 2012, luncheon presentation: “The Lessons of Central Falls: Municipal Insolvency and the Amazing World of a Chapter 9 Restructuring.”   The speaker will be former Rhode Island Supreme Court Justice Robert G. Flanders.  This presentation will focus on what it was like to be a receiver of an insolvent city and to lead it through the first ever municipal bankruptcy in Rhode Island history.

The luncheon will be held at the Brown Faculty Club, One Magee Street, Providence, Rhode Island from noon to 1:30 pm.  To reserve your seat, please send checks payable to “The Federal Bar Association” c/o Richard Ratcliffe, Esq., 40 Westminster Street, 7th Floor, Providence, Rhode Island 02903.  Luncheon tickets are $48 for FBA members; $54 for non-members.

Courtroom Dedication Ceremony for Judge Arthur Votolato

On Tuesday, July 31, 2012, a courtroom dedication ceremony will be held in honor of Bankruptcy Court Judge Arthur Votolato in the Courtroom of the United States Bankruptcy Court at 1:00 PM.  For RSVP information, please see this invitation for the dedication ceremony.

Judge Votolato served for 44 years as the state’s first and only bankruptcy judge and was the longest continuously serving active bankruptcy judge in the country.

Chief Judge Sandra L. Lynch of the United States Court of Appeals for the First Circuit recently announced that attorney Diane Finkle has been selected to fill the vacancy.  Judge-designee Finkle is a managing partner at Winograd Shine Land & Finkle, P.C. where she has practiced for the past 30 years, concentrating on business insolvency and debtor and creditor rights.

Rhode Island Supreme Court Vacates Conviction of Juan Diaz

The Supreme Court of Rhode Island has vacated the second degree murder conviction of Juan Diaz in the death of his wife Mayra Cruz in the case of State of Rhode Island v. Juan Diaz.

The defendant, Juan Diaz, appeals from a judgment of conviction on one count of second-degree murder and one count of using a firearm while committing a crime of violence. On appeal, the defendant first contends that the trial justice erred in failing to grant his motion for a judgment of acquittal on the second-degree murder charge; the basis for that contention is the defendant‟s subordinate assertion that the state failed to provide legally sufficient evidence for a jury to find that he acted with malice in connection with the death of the victim. The defendant additionally contends on appeal that the trial justice erred in omitting the phrase “criminal negligence” from his instruction to the jury concerning involuntary manslaughter and instead used “confusing language,” which made it difficult for the jury to distinguish the crime of involuntary manslaughter from the crime of murder in the second degree.

For the reasons set forth in this opinion, we affirm in part and reverse in part and vacate the judgment of conviction.

(…)

We hold that, in light of the facts of the instant case, the trial justice, in instructing the jury concerning involuntary manslaughter, committed reversible error in failing to include an adequate reference to the concept of criminal negligence….

Read the full opinion here.

Clients Rights and Responsibilities in Rhode Island – English and Spanish

New Rhode Island Bar Association president Mike McElroy recently sent out a note with a link to the Bar’s Notification to Clients of their Rights & Responsibilities statement in both English and Spanish to ensure proper communication between attorneys and clients.

• Click here to see the new Spanish version of Clients Rights and Responsibilities.
• Click here to see the English version of Clients Rights and Responsibilities.

Rhode Island Supreme Court update – June 28

The Rhode Island Supreme Court issued an opinion and an order today.

• Supreme Court opinion in David Higham v. State of Rhode Island, No. 2011-87, postconviction relief, with Justice Flaherty writing the unanimous opinion of the Court.  The defendant raised three issues on appeal: (1) right to counsel at his second postconviction-relief hearing, (2) error over refusal to review the denial of parole in the context of a postconviction-relief proceeding, and (3) error over finding of res judicata relative to allegations of “actual innocence” and “jury taint.”  The Court considered each of the three claims and affirmed the ruling of the Superior Court.  The full opinion is here.

•   Supreme Court order in State of Rhode Island v. Jose Tapia, No. 2010-338, sentencing appeal.  The defendant timely filed an appeal from a Superior Court order denying his motion to correct an illegal sentence and he argues error in that (1) the arson charge of which he was convicted should have been merged with his felony murder convictions; and (2) as such, double jeopardy. The Court affirmed the Superior Court’s order noting that the “defendant’s motion is not appropriate under Rule 35″ and “[f]urthermore, because the crime of arson in the first degree carries a penalty of up to life imprisonment, the sentence imposed in the instant case— viz., twenty years at the Adult Correctional Institutions—was not an illegal sentence in the context of Rule 35.”  The full order is here.

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