Chapter 1 Abatement of Nuisances

10-1-1. Action to abate nuisance — Contents.

Whenever a nuisance is alleged to exist, the attorney general or any citizen of the state may bring an action in the name of the state, upon the relation of the attorney general or of an individual citizen, to abate the nuisance and to perpetually enjoin the person or persons maintaining the nuisance and any or all persons owning any legal or equitable interest in the place from further maintaining or permitting the nuisance either directly or indirectly. The complaint shall be duly sworn to by the complaining party, unless brought by the attorney general, and shall set forth the names of the parties, the object of the action, a description of the place complained of, and a statement of the facts constituting the alleged nuisance.

History of Section. P.L. 1925, ch. 672, § 3; G.L. 1938, ch. 598, § 9; G.L. 1956, § 10-1-1 .

Cross References.

Boxing or wrestling, unauthorized matches, §§ 41-5-20 , 41-5-21 .

Communicable disease, unauthorized hospital or camp, § 23-6-9 .

Definition of terms, § 11-30-1 .

Noxious trades, prohibition by cities and towns, § 23-24-1 et seq.

Railroad built without charter or license, § 39-6-3 .

Solid waste management, § 23-19-1 et seq.

Tidewaters, unauthorized encroachments, § 46-6-3 .

Law Reviews.

For note, “Stirring up the Debate in Rhode Island: Should Lead Paint Manufacturers Be Held Liable for the Harm Caused by Lead Paint?,” see 7 Roger Williams U.L. Rev. 341 (2002).

Comparative Legislation.

Abatement of common nuisances:

Conn. Gen. Stat. § 19a-335 et seq.

Mass. Ann. Laws ch. 139, § 1 et seq.

NOTES TO DECISIONS

Applicability.

The remedy set forth in this section is neither exclusive nor mandatory and proceeding to declare nuisance need not comply with this section. Pucci v. Algiere, 106 R.I. 411 , 261 A.2d 1, 1970 R.I. LEXIS 939 (1970).

However grave the problem of lead poisoning is in Rhode Island, public nuisance law simply does not provide a remedy for this harm. The state has not and cannot allege facts that would fall within the parameters of what would constitute public nuisance under Rhode Island law. Defendant manufacturers were not in control of any lead pigment at the time the lead caused harm to children in Rhode Island, making defendants unable to abate the alleged nuisance, the standard remedy in a public nuisance action. State v. Lead Indus. Ass'n, 951 A.2d 428, 2008 R.I. LEXIS 79 (R.I. 2008).

Burden of Proof.

The burden of proving a nuisance is upon the party alleging it, who must demonstrate the existence of the nuisance and that injury has been caused by the nuisance complained of. Citizens for Preservation of Waterman Lake v. Davis, 420 A.2d 53, 1980 R.I. LEXIS 1833 (R.I. 1980).

Contingent Fee Agreements.

In an action imposing liability on former lead pigment manufacturers for creating a public nuisance, contingent fee agreements between the Attorney General and outside counsel would not violate Rhode Island Law. After a court had performed the function of reviewing and approving such a fee, allowing the requisite fee to be paid to the contingent fee counsel, the resulting balance would then be turned over to the General Treasury. State v. Lead Indus. Ass'n, 951 A.2d 428, 2008 R.I. LEXIS 79 (R.I. 2008).

Elements.

Negligence is not a necessary element of a nuisance case involving contamination of public or private waters by pollutants percolating through the soil and traveling underground routes. Wood v. Picillo, 443 A.2d 1244, 1982 R.I. LEXIS 833 (R.I. 1982).

There are three principal elements that are essential to establish public nuisance: (1) an unreasonable interference; (2) with a right common to the general public; and (3) by a person or people with control over the instrumentality alleged to have created the nuisance when the damage occurred. After establishing the presence of the three elements of public nuisance, one must then determine whether the defendant caused the public nuisance. State v. Lead Indus. Ass'n, 951 A.2d 428, 2008 R.I. LEXIS 79 (R.I. 2008).

Nuisance.

Liability for nuisance is imposed only in those cases in which the harm or risk to one is greater than he ought to be required to bear under the circumstances. Citizens for Preservation of Waterman Lake v. Davis, 420 A.2d 53, 1980 R.I. LEXIS 1833 (R.I. 1980).

Actionable nuisances fall into two classifications, public and private. Citizens for Preservation of Waterman Lake v. Davis, 420 A.2d 53, 1980 R.I. LEXIS 1833 (R.I. 1980).

A public nuisance is an unreasonable interference with a right common to the general public; it is behavior that unreasonably interferes with the health, safety, peace, comfort or convenience of the general community. Citizens for Preservation of Waterman Lake v. Davis, 420 A.2d 53, 1980 R.I. LEXIS 1833 (R.I. 1980).

A private nuisance involves an interference with the use and enjoyment of land. It involves a material interference with the ordinary physical comfort or the reasonable use of one’s property. Citizens for Preservation of Waterman Lake v. Davis, 420 A.2d 53, 1980 R.I. LEXIS 1833 (R.I. 1980).

Noise in and of itself can be a nuisance only if it unreasonably interferes with a person’s use and enjoyment of his property. Citizens for Preservation of Waterman Lake v. Davis, 420 A.2d 53, 1980 R.I. LEXIS 1833 (R.I. 1980).

Gas company’s argument that a landowner was precluded from seeking abatement or other injunctive relief for contamination of his property by hazardous substances when the contamination violated state environmental laws was not supported by either logic or law; R.I. Gen. Laws § 10-1-1 expressly permitted a private citizen to seek abatement or injunctive relief in an action for nuisance and state environmental laws were not intended to preempt that right. Corvello v. New Eng. Gas Co., 532 F. Supp. 2d 396, 2008 U.S. Dist. LEXIS 6923 (D.R.I. 2008).

Collateral References.

Airport operations or flight of aircraft as nuisance. 79 A.L.R.3d 253.

Betting on races as nuisance. 166 A.L.R. 1264.

Constitutional rights of owner as against destruction of building by public authorities. 14 A.L.R.2d 73.

Defenses in action to abate animal rendering or bone-boiling plant as nuisance. 17 A.L.R.2d 1269.

Extent of relief granted against use of phonograph, loud speaker or other mechanical or electrical device broadcasting music, advertising, or sales talk from business premises. 23 A.L.R.2d 1289.

Injunction against cemetery or burial ground as nuisance. 50 A.L.R.2d 1324.

Injunction against nuisance to health and comfort as remedy of tenant against stranger. 12 A.L.R.2d 1192.

Injunction against oil refinery as a nuisance. 86 A.L.R.2d 1322.

Joinder, in injunction action to restrain or abate nuisance, of persons contributing thereto through separate and independent acts. 45 A.L.R.2d 1284.

Nature of relief granted as to nuisance by operation of drive-in theatre or other outdoor dramatic or musical entertainment. 93 A.L.R.2d 1171.

Necessity of knowledge by owner of real estate of a nuisance maintained thereon by another to subject him to the operation of a statute providing for the abatement of nuisance or prescribing pecuniary penalty therefor. 12 A.L.R. 431, 121 A.L.R. 642.

Permitting guests to bring and consume their own liquor, charge of maintaining a liquor nuisance predicated on. 49 A.L.R. 1451.

Practice of exacting usury as nuisance constituting ground for injunction. 83 A.L.R.2d 848.

Public dump as nuisance justifying relief in equity. 52 A.L.R.2d 1134.

Quarry, gravel pit, or the like as nuisance justifying injunction. 47 A.L.R.2d 490.

Recovery in trespass for injury to land caused by airborne pollutants. 2 A.L.R.4th 1054.

Right or duty to refuse telephone, telegraph, or other wire service in aid of illegal gambling operations. 30 A.L.R.3d 1143.

Sewage disposal plant as anticipatory nuisance. 40 A.L.R.2d 1177.

Sewage treatment plant as constituting nuisance. 92 A.L.R.5th 517.

Street or highway, right, as between state and county or municipality, to maintain action to abate public nuisance. 65 A.L.R. 699.

Use of set gun, trap, or similar device on defendant’s own property. 47 A.L.R.3d 646.

Vibrations not accompanied by blasting or explosion as constituting nuisance. 103 A.L.R.5th 157.

What constitutes special injury that entitles private party to maintain action based on public nuisance — modern cases. 71 A.L.R.4th 13.

10-1-2. Filing of action — Application for temporary injunction.

The action shall be filed in the superior court of the county in which the nuisance is alleged to exist. Upon the filing of the action, application for a temporary injunction may be made to any justice of the superior court, and the justice shall order process to issue for a hearing to be held on the application within twenty (20) days thereafter. If the court shall not be in session in the county for which the action is filed on the date for the hearing, the process shall be made returnable to the court at Providence and the hearing shall be held at Providence, unless otherwise agreed by the parties or ordered by the court. Notice of the time and place of the hearing of the application for a temporary injunction shall be served upon the defendants named in the complaint at least three (3) days before the hearing. The hearing shall have precedence over all matters upon the docket.

History of Section. P.L. 1925, ch. 672, § 4; G.L. 1938, ch. 598, § 10; G.L. 1956, § 10-1-2 ; P.L. 1985, ch. 150, § 20.

Rules of Court.

For proceedings for injunction, see Super. Ct. R. Civ. P. Rule 65.

10-1-3. Temporary injunction — Enforcement.

If it shall appear to the court at the hearing that the alleged nuisance exists, a temporary injunction shall issue enjoining any and all respondents from further maintaining or permitting the nuisance, and from removing any personal property from the place where the nuisance is alleged to exist. It shall be within the power of the court to require any and all respondents to furnish a bond in a given amount, with or without surety, within such time as the court shall direct, conditioned upon the due observance of the temporary injunction. Any violation of the temporary injunction or any condition thereof shall be contempt of court to be punished as provided in § 10-1-10 .

History of Section. P.L. 1925, ch. 672, § 4; G.L. 1938, ch. 598, § 10; G.L. 1956, § 10-1-3 ; P.L. 1997, ch. 326, § 79.

Rules of Court.

For proceedings for injunction, see Super. Ct. R. Civ. Pro. Rule 65.

10-1-4. Application of rules of equity.

Proceedings under this chapter shall follow the usual and accepted rules of equity, except as provided in this chapter or otherwise provided by statute or rule of court.

History of Section. P.L. 1925, ch. 672, § 5; G.L. 1938, ch. 598, § 11; G.L. 1956, § 10-1-4 ; P.L. 1997, ch. 326, § 79.

Cross References.

Equity practice, § 9-14-1 et seq.

10-1-5. Evidence of reputation — Conviction of offenses against decency.

In any hearing in proceedings under this chapter, evidence of the general reputation of the place, or the conviction, whether by trial or plea, including a plea of nolo, of any person of the violation of statutes against prostitution, lewdness, or assignation committed in any such place shall be admissible for the purposes of proving the existence of the nuisance.

History of Section. P.L. 1925, ch. 672, § 6; G.L. 1938, ch. 598, § 12; G.L. 1956, § 10-1-5 .

Cross References.

Statutes against prostitution and lewdness, § 11-34.1-1 et seq.

10-1-6. Substitution of attorney general for original plaintiff — Costs against plaintiff.

No action filed under § 10-1-1 shall be dismissed without the consent of the attorney general, and if the attorney general is of the opinion that the action ought not to be dismissed, he or she may be substituted for the original plaintiff and prosecute the case to a final decree. If the action is brought by a person other than the attorney general and the court finds that there is no reasonable ground therefor, costs shall be awarded against the plaintiff.

History of Section. P.L. 1925, ch. 672, § 7; G.L. 1938, ch. 598, § 14; G.L. 1956, § 10-1-6 .

10-1-7. Decree and order of abatement — Sale of property.

If the existence of a nuisance shall finally be admitted or established in any proceeding under this chapter, a decree permanently enjoining the maintenance thereof shall be entered, and, in addition thereto, an order of abatement shall be entered, directing a deputy sheriff to enter the place where the nuisance exists and to sell and remove, in the manner provided for the sale of goods and chattels under execution, all personal property used in maintaining the nuisance, unless the owner of the personal property shall prove to the satisfaction of the court that he or she had no knowledge and by the exercise of reasonable diligence could not have learned of the maintenance of the nuisance before the filing of the complaint, and the court may further direct that the place where the nuisance exists shall be kept closed for all purposes for a period of one year unless otherwise ordered. The proceeds of any sale under this section shall be applied first to the payment of all costs incurred in connection with the proceedings brought under this chapter in connection with the nuisance, and secondly to the payment of a reasonable counsel fee for the plaintiff, and any balance remaining shall be paid to the owner of the property so sold.

History of Section. P.L. 1925, ch. 672, § 8; G.L. 1938, ch. 598, § 15; G.L. 1956, § 10-1-7 ; P.L. 2012, ch. 324, § 22.

Collateral References.

Remedies for sewage treatment plant alleged or deemed to be nuisance. 101 A.L.R.5th 287.

10-1-8. Dissolution of order to keep closed.

  1. The owner or lessor of any place ordered closed pursuant to § 10-1-7 may, at any time, have the order to keep the place closed dissolved upon the payment of all costs incurred and upon the filing of a bond in such sum and with such surety as shall be fixed and approved by the court, conditioned upon the immediate abatement of the nuisance and against any further maintenance thereof, provided the owner or lessor shall prove to the satisfaction of the court that he or she had no knowledge and by the exercise of reasonable diligence could not have learned of the existence of the nuisance before the commencement of the action.
  2. The dissolution of the order to keep the place closed shall not release the place from any judgment, lien, penalty, or liability, to which it may be subject by law. If any person shall break and enter or use a place ordered closed pursuant to § 10-1-7 , he or she shall be punished for contempt as provided in § 10-1-10 .

History of Section. P.L. 1925, ch. 672, § 8; G.L. 1938, ch. 598, § 15; G.L. 1956, § 10-1-8 ; P.L. 1997, ch. 326, § 79.

10-1-9. Proceedings after conviction in criminal proceedings.

In case the existence of a nuisance, as defined in §§ 11-30-1 and 11-30-2 , is established in criminal proceedings, the attorney general may proceed under this chapter to enforce the provisions and penalties of this chapter, and the finding of the defendant guilty in such criminal proceedings, unless reversed or set aside, shall be conclusive evidence as against the defendant as to the existence of a nuisance in proceedings under this chapter.

History of Section. P.L. 1925, ch. 672, § 9; G.L. 1938, ch. 598, § 16; G.L. 1956, § 10-1-9 ; P.L. 1997, ch. 326, § 79.

Cross References.

Criminal liability for nuisance, § 11-30-1 et seq.

10-1-10. Proceedings and punishment for contempt.

In case any person fails to comply with any order of the court or is otherwise in contempt of court under the provisions of this chapter, the court may try and punish the offender. Contempt proceedings shall be commenced by filing with the clerk of the court a complaint under oath, setting forth the facts, and the court shall thereupon cite the offender to appear and answer to the complaint. Any person found guilty of contempt of court under the provisions of this chapter shall be punished by a fine of not less than fifty dollars ($50.00) nor more than one hundred dollars ($100) and by imprisonment in the adult correctional institutions for not less than three (3) months nor more than six (6) months.

History of Section. P.L. 1925, ch. 672, § 11; G.L. 1938, ch. 598, § 17; G.L. 1956, § 10-1-10 ; impl. am. P.L. 1956, ch. 3721, § 1.

Rules of Court.

Criminal contempt, Super. Ct. R. Cr. P. Rule 42.

Chapter 2 Account

10-2-1. Account between owners of common property.

Whenever two (2) or more persons have and hold any estate, interest or property, whether real or personal, in common as joint tenants, tenants in common, co-parceners or joint owners and one or more of the owners of the common property shall take, receive, use or have benefit thereof, in greater proportion than his, her, or their interest therein, such owner or owners, his, her, or their executors and administrators shall be liable to render his, her, or their account of the use and profit of such common property to his, her or their fellow commoner or commoners, jointly or severally; and such of the fellow commoner or commoners or any or either of them, their executors or administrators, shall have his, her, or their action against such receiver or receivers or either of them, as his, her, or their bailiff or bailiffs, for receiving more than his, her, or their part or proportion as provided in this section.

History of Section. G.L. 1896, ch. 273, § 1; G.L. 1909, ch. 337, § 1; G.L. 1923, ch. 388, § 1; G.L. 1938, ch. 590, § 1; G.L. 1956, § 10-2-1 ; P.L. 1997, ch. 326, § 26.

Rules of Court.

Form of complaint on account, see Super. Ct. R. Civ. P. Rules, Form 4.

Comparative Legislation.

Accounting:

Conn. Gen. Stat. § 52-401 et seq.

NOTES TO DECISIONS

Credit for Expenses.

Co-tenant could have been credited for expenses for taxes, water rates, insurance, and reasonable repairs, even though not compelled to account for use of a portion of the common property. Kahnovsky v. Kahnovsky, 67 R.I. 208 , 21 A.2d 569, 1941 R.I. LEXIS 96 (1941).

Occupying tenant was not entitled to credit for services in care and management of the property. Kahnovsky v. Kahnovsky, 67 R.I. 208 , 21 A.2d 569, 1941 R.I. LEXIS 96 (1941).

Duty to Account.

When a tenant in common has the income or profit of more than his share he is liable to account for the excess. Almy v. Daniels, 15 R.I. 318 , 10 A. 654, 1887 R.I. LEXIS 61 (1887).

— Bailiff for Cotenant.

The liability of a tenant under this section is not dependent upon his appointment as bailiff by his co-tenant. Hazard v. Albro, 17 R.I. 181 , 20 A. 834, 1890 R.I. LEXIS 68 (1890).

— Exclusive Occupation.

When a tenant in common has the entire and exclusive occupation of any part of the common estate, he is liable to account, even though that part is less than his proportionate part. Almy v. Daniels, 15 R.I. 312 , 4 A. 753, 1886 R.I. LEXIS 25 (1886).

A tenant asking for an accounting on ground of entire and exclusive occupation of part of common property had to show an ouster by his co-tenant. Kahnovsky v. Kahnovsky, 67 R.I. 208 , 21 A.2d 569, 1941 R.I. LEXIS 96 (1941).

An ouster of wife by husband from property owned in joint tenancy was not shown where wife left and did not attempt to enter, nor ask husband to vacate or account for his occupancy, nor suggest that she wished to live there herself, even though wife may have had good cause to leave. Kahnovsky v. Kahnovsky, 67 R.I. 208 , 21 A.2d 569, 1941 R.I. LEXIS 96 (1941).

— Use and Benefit.

This section creates a liability to account even though there have been no actual receipts. Knowles v. Harris & Lippitt, 5 R.I. 402 , 1858 R.I. LEXIS 57 (1858); Hazard v. Albro, 17 R.I. 181 , 20 A. 834, 1890 R.I. LEXIS 68 (1890).

When a tenant in common uses the estate only to an extent less than his share and not to the extent of an ouster or denial of the right of his co-tenant, such use cannot be offset against the excessive use by his co-tenant. Almy v. Daniels, 15 R.I. 318 , 10 A. 654, 1887 R.I. LEXIS 61 (1887); Almy v. Daniels, 17 R.I. 543 , 23 A. 637, 1891 R.I. LEXIS 75 (1891).

Equitable Conversion.

Claim under this section for the use of real estate passed as personalty on decease of the claimant. Chaffee v. Franklin, 11 R.I. 578 , 1877 R.I. LEXIS 51 (1877).

Fair Value of Property.

Excluded tenant in common was entitled to fair rental value for his share, irrespective of profits made or which could have been made or of losses during the period of the co-tenant’s exclusive occupancy. Knowles v. Harris & Lippitt, 5 R.I. 402 , 1858 R.I. LEXIS 57 (1858).

Accounting between husband and wife should have considered value of assets acquired before marriage by wife, assets acquired by wife after separation, whether husband contributed his own earnings as agreed, and the value of withdrawals by husband for his own use. Monahan v. Monahan, 83 R.I. 385 , 117 A.2d 80, 1955 R.I. LEXIS 70 (1955).

Statute of Limitations.

Although a tenant in common is bailiff to his co-tenant, yet if he denies the right of the co-tenant, the confidential relationship ceases and the statute of limitations begins to run from that time. Almy v. Daniels, 15 R.I. 318 , 10 A. 654, 1887 R.I. LEXIS 61 (1887).

When a tenant appropriates a part of the property to his exclusive use, the statute of limitations begins to run, not when the tenant refuses to account to his co-tenant. Almy v. Daniels, 15 R.I. 318 , 10 A. 654, 1887 R.I. LEXIS 61 (1887).

Collateral References.

Basis of computation of co-tenant’s accountability for minerals and timber removed from property. 5 A.L.R.2d 1368.

Joint adventurer, accountability for profits earned subsequently to death or dissolution. 80 A.L.R. 12, 55 A.L.R.2d 1391.

Joint adventurer, right to accounting where firm business or transactions are illegal. 32 A.L.R.2d 1345.

Misappropriated money or property, or secret profits, right of member of joint adventure who is required to account for, to share in. 118 A.L.R. 640.

Oil and gas, bases of accounting by co-tenant as to. 40 A.L.R. 1404, 91 A.L.R. 205.

Rents and profits or use and occupation, accountability of co-tenants for. 27 A.L.R. 184, 39 A.L.R. 408, 51 A.L.R.2d 388.

Timber cut by co-tenant, accounting for. 2 A.L.R. 1004, 41 A.L.R. 582.

10-2-2. Appointment and meeting of auditors.

Upon rendering final judgment against the defendant in an action under § 10-2-1 that he or she shall account, the court rendering the final judgment shall appoint not more than three (3) auditors who, upon being sworn by the court, or any justice of the peace or notary public, to a faithful and impartial discharge of their duties, shall appoint a time and place to meet the parties in the action and to take the account, as required in the court’s judgment, and shall give notice of the meeting to the parties.

History of Section. G.L. 1896, ch. 273, § 2; G.L. 1909, ch. 337, § 2; G.L. 1923, ch. 388, § 2; G.L. 1938, ch. 590, § 2; G.L. 1956, § 10-2-2 ; P.L. 1997, ch. 326, § 26.

10-2-3. Commitment of parties refusing to give evidence to auditors.

Whenever any defendant shall unreasonably refuse or neglect to appear at the time and place assigned by the auditors or, after appearing, shall refuse or neglect to render an account, the auditors may award to the plaintiff the whole of his or her demand, and the auditors may administer an oath to the parties, respectively, and examine them respecting their accounts and the matters submitted to them, and upon either of the parties refusing to take an oath truly to answer such questions as shall be asked or to answer directly to the interrogatories put to him or her, the auditors may commit him or her to jail, there to remain at his or her own charge until he or she consent to take the oath and answer the interrogatories.

History of Section. G.L. 1896, ch. 273, § 3; G.L. 1909, ch. 337, § 3; G.L. 1923, ch. 388, § 3; G.L. 1938, ch. 590, § 3; G.L. 1956, § 10-2-3 .

10-2-4. Judgment on auditors’ award.

Whenever the auditors appointed in any case shall have made their report or award concerning the matter submitted to them to the court from whence they shall have received their appointment, if no legal cause shall be shown for setting aside the auditor’s award or report, judgment shall be rendered in conformity thereto, and also for costs, including such reasonable allowance to the auditors for their services as the court shall judge proper to make, and the reasonable compensation to the auditors shall be paid by the party in whose favor final judgment shall be rendered before he or she shall have execution on the court’s judgment.

History of Section. G.L. 1896, ch. 273, § 4; G.L. 1909, ch. 337, § 4; G.L. 1923, ch. 388, § 4; G.L. 1938, ch. 590, § 4; G.L. 1956, § 10-2-4 .

10-2-5. Majority report of auditors — Quorum.

If a major part of the auditors appointed in any case agree to and assign such report or award, the report or award shall be equally binding and conclusive as if agreed to and signed by all of them; provided, that it shall be necessary, in order to give validity to the report or award, that all the auditors shall accept of their appointment and meet on the subject matter thereof.

History of Section. G.L. 1896, ch. 273, § 5; G.L. 1909, ch. 337, § 5; G.L. 1923, ch. 388, § 5; G.L. 1938, ch. 590, § 5; G.L. 1956, § 10-2-5 .

Chapter 3 Arbitration

10-3-1. Short title.

This chapter may be referred to as “The Arbitration Act”.

History of Section. P.L. 1929, ch. 1408, § 17; G.L. 1938, ch. 475, § 17; G.L. 1956, § 10-3-1 .

Comparative Legislation.

Arbitration and award:

Conn. Gen. Stat. § 52-408 et seq.

Mass. Ann. Laws ch. 251, § 1 et seq.

NOTES TO DECISIONS

Attorney Fees.

Once a party obtains a favorable award in the arbitration of a mechanics’ lien action under the Rhode Island Arbitration Act, R.I. Gen. Laws § 10-3-1 to 10-3-21 , he may not seek costs and attorneys’ fees under the guise of a motion to enforce the award. Aponik v. Lauricella, 844 A.2d 698, 2004 R.I. LEXIS 66 (R.I. 2004).

Jurisdiction.

Subject matter jurisdiction of a family court to enforce an arbitrator’s decision declaring it reasonable for a husband to pay for two years of his son’s high school tuition was not invoked under the Rhode Island Arbitration Act, R.I. Gen. Laws § 10-3-1 , rather the family court had jurisdiction to enforce the parties’ non-merged property settlement agreement, pursuant to R.I. Gen. Laws § 8-10-3(a) , in which the husband and wife agreed to submit a dispute regarding reasonable tuition expenses to arbitration; the family court did not order the parties to arbitrate nor did it confirm an arbitration award. Vanderheiden v. Marandola, 994 A.2d 74, 2010 R.I. LEXIS 57 (R.I. 2010).

Collateral References.

Consolidation by State Court of Arbitration Proceedings Brought Under State Law. 31 A.L.R.6th 433.

Consolidation by federal court of arbitration proceedings brought under Federal Arbitration Act (9 USCS § 4). 104 A.L.R. Fed. 251.

Referee’s failure to file report within time specified by statute, court order, or stipulation as terminating reference. 71 A.L.R.4th 889.

10-3-2. Agreements to arbitrate subject to chapter.

When clearly written and expressed, a provision in a written contract to settle by arbitration a controversy thereafter arising out of such contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two (2) or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract; provided, however, that the provisions of this chapter shall not apply to collective contracts between employers and employees, or between employers and associations of employees, in respect to terms or conditions of employment; and provided further, that in all contracts of primary insurance, wherein the provision for arbitration is not placed immediately before the testimonium clause or the signature of the parties, the arbitration procedure may be enforced at the option of the insured, and in the event the insured exercises the option to arbitrate, then the provisions of this chapter shall apply and be the exclusive remedy available to the insured.

History of Section. P.L. 1929, ch. 1408, § 1; G.L. 1938, ch. 475, § 1; P.L. 1939, ch. 659, § 2; G.L. 1956, § 10-3-2 ; P.L. 1974, ch. 48, § 1; P.L. 1976, ch. 342, § 1; P.L. 1998, ch. 275, § 1.

Cross References.

Labor controversies, § 28-9-1 et seq.

Trustee’s authority to arbitrate dispute, §§ 18-4-3 , 18-4-8 .

Law Reviews.

Survey Section: Contract Law, see 3 R.W.U.L. Rev. 433 (1998).

NOTES TO DECISIONS

Clearly Expressed Agreements.

Since the plaintiff did not sign or return the confirmation letter purporting to contain the agreement to arbitrate, there was no clearly expressed agreement to arbitrate mutually assented to by both parties; the retention of the confirmation letter by the plaintiff, without more, is not sufficient to satisfy the requirement of an express and unequivocal agreement to arbitrate. Stanley-Bostitch, Inc. v. Regenerative Envtl. Equip. Co., 697 A.2d 323, 1997 R.I. LEXIS 219 (R.I. 1997).

There was nothing in the record that objectively manifested the intention that both parties were mutually bound by a clearly expressed and written arbitration clause as was required under § 10-3-2 ; therefore, in the absence of a valid arbitration agreement, plaintiff could not be required to submit to arbitration proceedings. A.T. Cross Co. v. Royal Selangor(s) PTE, LTD, 217 F. Supp. 2d 229, 2002 U.S. Dist. LEXIS 16650 (D.R.I. 2002).

Contract’s broad language stating that disputes “shall be submitted to binding arbitration” comported with the statutory requirement of R.I. Gen. Laws § 10-3-2 that an arbitration agreement be clearly written and expressed. Newman v. Valleywood Assocs., 874 A.2d 1286, 2005 R.I. LEXIS 122 (R.I. 2005).

Collective Bargaining Agreements.

This chapter does not apply to collective bargaining agreements. Industrial Trades Union v. Dunn Worsted Mills, 131 F. Supp. 945, 1955 U.S. Dist. LEXIS 3301 (D.R.I. 1955).

Specific Documents.

Insurance policy provision requiring selection of two appraisers and an umpire called for arbitration within the meaning of this chapter, and is therefore subject to the arbitration confirmation procedure outlined in § 10-3-11 . Waradzin v. Aetna Casualty & Sur. Co., 570 A.2d 649, 1990 R.I. LEXIS 37 (R.I. 1990).

Because the defendant’s confirmation order purporting to contain the arbitration provision operated as an acceptance of the plaintiff’s purchase order within the meaning of subsection (1) of § 6A-2-207 , and since under subsection (2) of § 6A-2-207 new terms become part of the contract between the parties unless objected to or unless the new terms materially alter the terms of the bargain, the arbitration provision did not become part of the contract because a provision compelling a party to submit to binding arbitration material alters the terms of the parties agreement. Stanley-Bostitch, Inc. v. Regenerative Envtl. Equip. Co., 697 A.2d 323, 1997 R.I. LEXIS 219 (R.I. 1997).

Void Clauses.

Provisions in insurance contracts allowing either party to demand trials de novo when arbitration awards exceed the minimum limits for bodily injury liability are void as against public policy. Pepin v. American Universal Ins. Co., 540 A.2d 21, 1988 R.I. LEXIS 67 (R.I. 1988).

Waiver of Invalidity of Arbitration Clause.

Where hospital sent letter to boiler manufacturer which referred to arbitration clause of manufacturer’s proposal and which asked manufacturer whether it would be willing to arbitrate entire dispute, including general contractor’s claim against hospital for delay in construction of hospital addition, which hospital asserted was caused by delay in installation of boilers, and which stated that it would be necessary to agree upon the procedure and method of arbitration to be utilized, said letter did not constitute waiver of right to assert as ground for nonenforceability the failure of the arbitration agreement to conform to arbitration statute. A. C. Beals Co. v. Rhode Island Hosp., 110 R.I. 275 , 292 A.2d 865, 1972 R.I. LEXIS 910 (1972).

The insurance company had waived its right to have an arbitration clause declared invalid where it sold a policy containing an arbitration clause not located as required in this section, two years after the ruling that such location of the clause made it of no force and effect and prior to the 1974 amendment which validated clauses so located. Pacheco v. Nationwide Mut. Ins. Co., 114 R.I. 575 , 337 A.2d 240, 1975 R.I. LEXIS 1455 (1975).

Collateral References.

Arbitration of disputes within close corporation. 64 A.L.R.2d 643.

Arbitration of medical malpractice claims. 24 A.L.R.5th 1.

Arbitration provisions of employment contract providing for severance or dismissal pay. 40 A.L.R.2d 1044.

Arbitrator’s consultation with outsider as misconduct. 47 A.L.R.2d 1362.

Breach or repudiation of contract as affecting right to enforce arbitration clause therein. 32 A.L.R.3d 377.

Claim of fraud in inducement of contract as subject to compulsory arbitration clause contained in contract. 11 A.L.R.4th 774.

Conclusiveness of statement or decision of accountant or similar third person under contract between others requiring property to be valued by him. 50 A.L.R.2d 1268.

Conditions precedent to the bringing of action, validity of agreement to arbitrate disputes generally as. 26 A.L.R. 1077.

Constitutionality of arbitration statute. 55 A.L.R.2d 432.

Contract providing that it is governed by or subject to rules or regulations of a particular trade, business, or association as incorporating agreement to arbitrate. 41 A.L.R.2d 872.

Contractual provision for determination by arbitrators of price to be paid for property, or amount of damages for breach, as contemplating formal arbitration or the individual judgment of the arbitrators. 157 A.L.R. 1286.

Death of party to arbitration agreement before award as termination of submission. 63 A.L.R.2d 754.

Disqualification of arbitrator by court, prior to award, on ground of interest, bias, prejudice, collusion, or fraud. 65 A.L.R.2d 755.

Effect of vacancy through resignation, withdrawal, or death of one of multiple arbitrators on authority of remaining arbitrators to render award. 49 A.L.R.2d 900.

Enforcement of arbitration agreement contained in construction contract by or against nonsignatory. 100 A.L.R.5th 481.

Enforceability of arbitration clauses in collective bargaining agreements as regards claims under federal civil rights statutes. 152 A.L.R. Fed. 75.

Estoppel to rely on statute of limitations by agreement to arbitrate. 130 A.L.R. 42, 24 A.L.R.2d 1413.

Foreign jurisdiction, effect and remedy in respect of contractual stipulation to submit disputes to arbitration in. 12 A.L.R.3d 892.

Future questions, validity of agreement for submission of, to arbitration. 135 A.L.R. 79.

Infant’s agreement to arbitrate future controversies. 78 A.L.R.2d 1292.

Jurisdiction of federal court or court of sister state of proceedings pursuant to state or foreign statute to compel arbitration. 85 A.L.R. 1124.

Misconduct of arbitrator in viewing or visiting premises or property alone as affected by waiver or consent. 27 A.L.R.2d 1160.

Necessity that arbitrator, in making award, make specific and detailed findings of fact and conclusions of law. 82 A.L.R.2d 969.

Participation in arbitration proceedings as waiver to objections to arbitrability under state law. 56 A.L.R.5th 757.

Partner’s personal liability who, in firm name, without authority, agrees to arbitrate. 4 A.L.R. 260.

Power of arbitrators to award injunction or specific performance. 70 A.L.R.2d 1055.

Probate matters, arbitration of issues or questions pertaining to. 104 A.L.R. 359.

Quotient arbitration award or appraisal. 20 A.L.R.2d 958.

Renewal of lease at rent to be fixed by arbitration, validity of provision for. 30 A.L.R. 572, 68 A.L.R. 157, 166 A.L.R. 1237.

Sales contracts, construction of arbitration provisions of, as regards questions to be submitted to arbitration. 136 A.L.R. 364.

Support of wife or child, dispute as to amount husband or father should pay for, as subject of arbitration.

Time for impeaching arbitration award. 85 A.L.R.2d 779.

Uninsured and underinsured motorist coverage: enforceability of policy provision limiting appeals from arbitration. 23 A.L.R.5th 801.

Validity and construction of provisions for arbitration of disputes as to alimony or support payments or child visitation or custody matters. 38 A.L.R.5th 69.

Validity and construction of provisions for arbitration of disputes as to alimony or support payments or child visitation or custody matters. 38 A.L.R.5th 69.

Validity and effect under Federal Arbitration Act (9 U.S.C.S. § 1 et seq.) of arbitration agreement provision for alternative method of appointment of arbitrator where one party fails or refuses to follow appointment procedure specified in agreement. 159 A.L.R. Fed. 1.

Validity and effect under state law of arbitration agreement provision for alternative method of appointment of arbitrator where one party fails or refuses to follow appointment procedure specified in agreement. 75 A.L.R.5th 595.

Validity of arbitration agreement as affected by provision of general arbitration statute excluding from operation contract for labor or personal services. 64 A.L.R.2d 1340.

Validity of arbitration agreement provision that, upon one party’s failure to appoint arbitrator, controversy may be determined by arbitrator appointed by other party. 47 A.L.R.2d 1346.

What statute of limitations applies to action to compel arbitration pursuant to § 301 of the Labor Management Relations Act (29 USCS § 185). 96 A.L.R. Fed. 378.

Which statute of limitations applies to efforts to compel arbitration of a dispute. 77 A.L.R.4th 1071.

10-3-3. Stay of actions on issues referable to arbitration.

If any suit or proceeding be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the suit is pending, upon being satisfied that the issue involved in the suit or proceeding is referable to arbitration under such an agreement, shall, on application of one of the parties, stay the trial of the action until the arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.

History of Section. P.L. 1929, ch. 1408, § 2; G.L. 1938, ch. 475, § 2; G.L. 1956, § 10-3-3 .

Law Reviews.

2001 Survey of Rhode Island Law, see 7 Roger Williams U.L. Rev. 403 (2002).

NOTES TO DECISIONS

Abuse of Discretion.

The trial court erred in not deferring ruling on a motion to stay and instead proceeding to resolve facts predicate to the invocation of an arbitration provision in an employment contract “summarily” via a trial or an evidentiary hearing limited to the claim that the employer fraudulently induced the plaintiff to sign the employment agreement. Bjartmarz v. Pinnacle Real Estate Tax Serv., 771 A.2d 124, 2001 R.I. LEXIS 124 (R.I. 2001).

Because a hearing justice abused the justice’s discretion by awarding attorneys’ fees and costs after ordering a stay of litigation pending arbitration pursuant to R.I. Gen. Laws § 10-3-3 under the terms of the parties’ limited-warranty agreement, the award was vacated and the matter was remanded for arbitration. Napier v. Epoch Corp., 971 A.2d 594, 2009 R.I. LEXIS 66 (R.I. 2009).

Affirmative Defense.

Arbitration is an affirmative defense, and as such a defending party using it must specifically plead it in the answer or that defense is waived. Associated Bonded Constr. Co. v. Griffin Corp., 438 A.2d 1088, 1981 R.I. LEXIS 1425 (R.I. 1981).

Appeals.

Party aggrieved by an order denying a motion under this section to stay litigation may appeal as of right from that order. R.I. Council on Postsecondary Educ. v. Hellenic Soc'y Paideia - R.I. Chapter, 202 A.3d 931, 2019 R.I. LEXIS 33 (R.I. 2019).

Denial of tenants’ motion for a stay of litigation over a lease dispute pending arbitration was appealable; by specifying in § 10-3-19 that “[a]ny party” may bring a direct appeal if aggrieved by “any ruling” authorized by chapter 3 of title 10, the General Assembly clearly intended to permit direct appeals from orders both granting and denying motions to stay brought under this section. R.I. Council on Postsecondary Educ. v. Hellenic Soc'y Paideia - R.I. Chapter, 202 A.3d 931, 2019 R.I. LEXIS 33 (R.I. 2019).

Diligence.

To stay an action pending arbitration, a plaintiff must apply with reasonable diligence after initiating the suit, or that party’s contractual right to arbitrate will be waived. Soprano v. American Hardware Mut. Ins. Co., 491 A.2d 1008, 1985 R.I. LEXIS 496 (R.I. 1985).

Waiver.

When a developer sued a building owner and the owner’s officer in a parking space dispute, referral to arbitration, under a condominium declaration, was not required because arbitration was waived, as the owner and officer (1) first raised arbitration in a cross-motion for summary judgment, and (2) did not plead this affirmative defense in an answer. JHRW, LLC v. Seaport Studios, Inc., 212 A.3d 168, 2019 R.I. LEXIS 101 (R.I. 2019).

Collateral References.

Voluntary dismissal or nonsuit, right of plaintiff to take, after case has been submitted to arbitrator by agreement. 89 A.L.R. 99, 126 A.L.R. 284.

10-3-4. Petition for arbitration — Service, hearing, and reference.

The party aggrieved by the alleged failure, neglect, or refusal of another to perform under a written agreement for arbitration may petition the superior court for the county in which any of the parties reside or has his or her place of business for an order directing that the arbitration proceed in the manner provided for in the agreement. Five (5) days’ notice in writing of the application shall be served upon the party in default. Service thereof shall be made in the manner provided by law for the service of a writ of summons. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.

History of Section. P.L. 1929, ch. 1408, § 3; G.L. 1938, ch. 475, § 3; G.L. 1956, § 10-3-4 .

Cross References.

Boiler inspection, disputed decision of division, §§ 28-25-12 , 28-25-13 .

Rule to refer case to referee, § 9-15-1 et seq.

Law Reviews.

2006 Survey of Rhode Island Law: Alternative Dispute Resolution, see 12 Roger Williams U. L. Rev. 465 (2007).

NOTES TO DECISIONS

Existence of Agreement.

The evidence showed a clearly written and expressed agreement to arbitrate, despite an attorney’s letter returning the executed agreement and suggesting an arbitration proceeding other than the one recited, where any disagreement concerned only the terms of the arbitration procedure. O. Ahlborg & Sons v. Interior Syss., 528 A.2d 739, 1987 R.I. LEXIS 542 (R.I. 1987).

Despite the existence in a services agreement between a medical company and a hospital to “arbitrate all disputes,” their dispute over whether their agreement had terminated or automatically renewed was not subject to arbitration under the arbitration clause, and the company’s motion pursuant to the Rhode Island Arbitration Act, R.I. Gen. Laws § 10-3-1 et seq., to compel arbitration was properly denied; the parties did not intend to arbitrate that issue. The agreement contained a clause with a specific termination date and a date by which a notice of non-renewal had to be sent, and the more specific clause containing the termination date took precedence over the parties’ non-specific arbitration clause in which they had agreed to arbitrate “all disputes.” Radiation Oncology Assocs. v. Roger Williams Hosp., 899 A.2d 511, 2006 R.I. LEXIS 114 (R.I. 2006).

Petition for Enforcement.

If, as asserted in the plaintiff’s complaint, the defendants breached a contract by failing to mediate or arbitrate an earlier suit, the plaintiff’s only recourse would be to petition the Superior Court for an order to enforce the terms of the arbitration agreement pursuant to this section. Thus, the plaintiff’s claim was appropriately dismissed. Solomon v. Progressive Cas. Ins. Co., 685 A.2d 1073, 1996 R.I. LEXIS 289 (R.I. 1996).

By filing a petition to enforce an arbitration clause in an insurance contract, the petitioning party is requesting that the court interpret the contract to determine whether arbitration is necessary and enter a decree to that effect. Because a trial justice’s decision on a petition for arbitration creates a legally binding obligation, such a petition is properly a “legal action” for purposes of construing the contract. Nat'l Refrigeration, Inc. v. Travelers Indem. Co. of Am., 947 A.2d 906, 2008 R.I. LEXIS 63 (R.I. 2008).

When an insured filed a petition for arbitration of an appraisal dispute, it filed a legal action as contemplated by R.I. Gen. Laws § 10-3-4 . By this time, more than seven years had passed since the damage to the insured’s property, making the petition a legal action that was brought clearly beyond the two-year period specified in an insurance contract. Nat'l Refrigeration, Inc. v. Travelers Indem. Co. of Am., 947 A.2d 906, 2008 R.I. LEXIS 63 (R.I. 2008).

Petition to order arbitration of an appraisal of damages was barred by the plain language of an insurance contract’s two-year limitation provision. The insured could have brought suit sooner and the insurer’s agreement to investigate did not toll limitation period. Nat'l Refrigeration, Inc. v. Travelers Indem. Co. of Am., 947 A.2d 906, 2008 R.I. LEXIS 63 (R.I. 2008).

Time for Dismissal.

Where the suit for arbitration had been concluded by the arbitration order as modified by a consent order, defendant’s motion to dismiss was untimely. Douglas Constr. & Supply Corp. v. Wholesale Ctr., 119 R.I. 449 , 379 A.2d 917, 1977 R.I. LEXIS 1948 (1977).

Collateral References.

Application of Equitable Estoppel by Nonsignatory to Compel Arbitration — Federal Cases. 39 A.L.R. Fed. 2d 17.

Application of Equitable Estoppel Against Nonsignatory to Compel Arbitration Under Federal Law. 43 A.L.R. Fed. 2d 275.

Participation in arbitration proceedings as waiver to objections to arbitrability under state law. 56 A.L.R.5th 757.

10-3-5. Determination as to whether issue is subject to arbitration.

If the making of the arbitration agreement or the failure, neglect, or refusal to perform the arbitration agreement is in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded, the court shall hear and determine the issue. Where such an issue is raised, either party may, on or before the return day of the notice of application, demand a jury trial of the issue, and upon the demand of a jury trial the court shall make an order referring the issue or issues to a jury as in equity causes. If the jury finds that no agreement in writing for arbitration was made, or that there is no default in proceeding thereunder, the proceeding shall be dismissed. If the jury finds that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof.

History of Section. P.L. 1929, ch. 1408, § 3; G.L. 1938, ch. 475, § 3; G.L. 1956, § 10-3-5 .

Law Reviews.

2001 Survey of Rhode Island Law, see 7 Roger Williams U.L. Rev. 403 (2002).

NOTES TO DECISIONS

Abuse of Discretion.

The trial court erred in not deferring ruling on a motion to stay and instead proceeding to resolve facts predicate to the invocation of an arbitration provision in an employment contract “summarily” via a trial or an evidentiary hearing limited to the claim that the employer fraudulently induced the plaintiff to sign the employment agreement. Bjartmarz v. Pinnacle Real Estate Tax Serv., 771 A.2d 124, 2001 R.I. LEXIS 124 (R.I. 2001).

10-3-6. Judicial appointment of arbitrators.

If, in the agreement, provision is made for a method of naming or appointing an arbitrator or arbitrators or an umpire, the method shall be followed; but if no method is provided in the agreement, or if a method is provided and any party thereto shall fail to avail himself or herself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or an umpire, or in filling a vacancy, then, upon the application of either party to the controversy, the court, as described in § 10-3-4 , shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the agreement with the same force and effect as if he, she, or they had been specifically named in the agreement; and, unless otherwise provided in the agreement, the arbitration shall be by a single arbitrator.

History of Section. P.L. 1929, ch. 1408, § 5; G.L. 1938, ch. 475, § 5; G.L. 1956, § 10-3-6 ; P.L. 1997, ch. 326, § 27.

10-3-7. Manner of making and hearing applications.

Any application to the court under this chapter shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise expressly provided in this chapter.

History of Section. P.L. 1929, ch. 1408, § 4; G.L. 1938, ch. 475, § 4; G.L. 1956, § 10-3-7 ; P.L. 1997, ch. 326, § 93.

Cross References.

Bribery, §§ 11-7-1 , 11-7-2 .

Collateral References.

Testamentary appointment of arbitrator. 104 A.L.R. 362.

10-3-8. Arbitrators’ hearing — Summons of witnesses.

When more than one arbitrator is agreed to, all the arbitrators shall sit at the hearing of the case, unless, by consent in writing, all parties shall agree to proceed with the hearing with a less number. The arbitrators selected either as prescribed in this chapter or otherwise, or a majority of them, may summon in writing any person, to attend before them or any of them as a witness, and in a proper case to bring with him, her, or them any book, record, document or paper, which may be deemed material as evidence in the case. The fees for such attendance shall be the same as the fees of witnesses in the superior court. The summons shall issue in the name of the arbitrator or arbitrators, or a majority of them, and shall be signed by the arbitrator or arbitrators, or a majority of them, and shall be directed to the person to be summoned and shall be served in the same manner as subpoenas to appear and testify before superior court. If any person or persons, so summoned to testify, shall refuse or neglect to obey the summons, upon petition the court may compel the attendance of the person or persons before the arbitrator or arbitrators or punish the person or persons for contempt, in the same manner now provided for securing the attendance of witnesses or their punishment for neglect or refusal to attend superior court.

History of Section. P.L. 1929, ch. 1408, § 6; G.L. 1938, ch. 475, § 6; G.L. 1956, § 10-3-8 ; P.L. 1997, ch. 326, § 93.

Cross References.

Fees for witnesses in courts, §§ 9-29-7 , 9-29-8 .

Collateral References.

Misconduct of arbitrator in viewing or visiting premises or property alone as affected by waiver or consent. 27 A.L.R.2d 1160.

Right of arbitrator to consider or to base his decision upon matters other than those involved in the legal principles applicable to the questions at issue between the parties. 112 A.L.R. 873.

10-3-9. Taking of depositions.

Upon petition, approved by the arbitrators or by a majority of them, the superior court may direct the taking of depositions to be used as evidence before the arbitrators, in the same manner and for the same reasons as provided by law for the taking of depositions in suits or proceedings pending in superior court.

History of Section. P.L. 1929, ch. 1408, § 7; G.L. 1938, ch. 475, § 7; G.L. 1956, § 10-3-9 ; P.L. 1997, ch. 326, § 93.

Cross References.

Depositions to be used in court, § 9-18-8 .

NOTES TO DECISIONS

Public Works Arbitration Act.

Where the contract provided for arbitration under the Public Works Arbitration Act (§§ 37-16-1 to 37-16-27 ), which contains no discovery provisions, the parties were precluded from discovery under this section. Lutz Eng'g Co. v. Sterling Eng'g & Constr. Co., 112 R.I. 605 , 314 A.2d 8, 1974 R.I. LEXIS 1476 (1974).

Collateral References.

Discovery in Federal Arbitration Proceedings Under Discovery Provision of Federal Arbitration Act (FAA), 9 USCS § 7, and Federal Rules of Civil Procedure, as Permitted by Fed. R. Civ. P. 81(a)(6)(B). 45 A.L.R. Fed. 2d 51.

10-3-10. Form and signature of arbitrators’ award.

The award must be in writing and must be signed by the arbitrators or by a majority of them.

History of Section. P.L. 1929, ch. 1408, § 8; G.L. 1938, ch. 475, § 8; G.L. 1956, § 10-3-10 .

NOTES TO DECISIONS

Findings of Fact.

Unless otherwise provided by the arbitration agreement or submission, the arbitrators of a commercial dispute are under no obligation to set out the reasons for their award or the findings of fact or conclusions of law on which that award is premised. Westminster Constr. Corp. v. PPG Indus., 119 R.I. 205 , 376 A.2d 708, 1977 R.I. LEXIS 1875 (1977).

Collateral References.

Concurrence of all arbitrators as condition of binding award under submission to arbitration. 77 A.L.R. 838.

10-3-11. Order confirming award.

At any time within one year after the award is made, any party to the arbitration may apply to the court for an order confirming the award, and thereupon the court must grant the order confirming the award unless the award is vacated, modified or corrected, as prescribed in §§ 10-3-12 10-3-14 . Notice in writing of the application shall be served upon the adverse party or his or her attorney ten (10) days before the hearing on the application.

History of Section. P.L. 1929, ch. 1408, § 9; G.L. 1938, ch. 475, § 9; G.L. 1956, § 10-3-11 ; P.L. 1989, ch. 145, § 1.

Law Reviews.

2001 Survey of Rhode Island Law, see 7 Roger Williams U.L. Rev. 403 (2002).

NOTES TO DECISIONS

Applicability.

Insurance policy provision requiring selection of two appraisers and an umpire called for arbitration within the meaning of this chapter, and is therefore subject to the arbitration confirmation procedure outlined in this section. Waradzin v. Aetna Casualty & Sur. Co., 570 A.2d 649, 1990 R.I. LEXIS 37 (R.I. 1990).

Confirmation of an arbitration award is governed by R.I. Gen. Laws § 10-3-11 ; vacating an arbitration award is governed by R.I. Gen. Laws § 10-3-12 . State Dep't of Corr. v. R.I. Bhd. of Corr. Officers, 2003 R.I. LEXIS 35 (R.I. Feb. 3, 2003).

Arbitration award under motor vehicle policy provision, pursuant to R.I. Gen. Laws § 27-10.3-1 , required confirmation pursuant to R.I. Gen. Laws § 10-3-11 , where the arbitrator had determined that the insured had failed to prove sufficient injuries to support a determination that required his own insurer to compensate him under the uninsured/underinsured motorist provision of his insurance policy, R.I. Gen. Laws § 27-7-2.1 , and where the insured had not made a motion to vacate the arbitration award pursuant to R.I. Gen. Laws § 10-3-12 . Desjarlais v. USAA Ins. Co., 818 A.2d 645, 2003 R.I. LEXIS 46 (R.I. 2003).

Award Improperly Modified.

Trial court improperly conducted a de novo review of an arbitration award and modified the award based on an erroneous belief that the arbitrators had made a mistake of law in awarding prejudgment interest above the policy limits since a mistake of law was not a ground for disturbing an award; the award had to be confirmed since no grounds for modification or vacation of the award existed. Wheeler v. Encompass Ins. Co., 66 A.3d 477, 2013 R.I. LEXIS 87 (R.I. 2013).

It was error to modify an arbitration award, which had been awarded in favor of an alleged injured party and against an insurer in excess of the uninsured motorist policy limits, because it was patently erroneous for the trial justice to have heard new evidence (the arbitrator’s testimony) and considered documents not submitted to the arbitrator (the policy), thereby exceeding the limited authority granted in § 10-3-14 . Lemerise v. Commerce Ins. Co., 137 A.3d 696, 2016 R.I. LEXIS 49 (R.I. 2016).

Confirmation Not Upheld.

While the parties agreed in a collective bargaining agreement (CBA) to arbitrate the rights of part-time faculty in a university’s assignment of both academic and administrative responsibilities and an arbitrator plausibly interpreted the CBA to find that the university rescinded a long-term part-time faculty member’s special programs contract by unilaterally imposing a course per semester cap that was in violation of the CBA, the arbitrator exceeded his authority by imposing a cease-and-desist order that did not “draw its essence” from the CBA. The order pertained not only to courses, but also to administrative assignments not covered by the CBA. R.I. Council on Postsecondary Educ. v. Am. Ass'n of Univ. Professors, 176 A.3d 1101, 2017 R.I. LEXIS 132 (R.I. 2017).

Confirmation Upheld.

Where it was not shown that the trial justice clearly erred by finding that the defendant failed to meet its burden of showing that an arbitrator was evidently partial to the plaintiff or that he refused to hear pertinent evidence concerning the plaintiff’s mitigation of damages, the confirmation of the arbitration award was affirmed. Taylor v. Delta Elec. Power, Inc., 741 A.2d 265, 1999 R.I. LEXIS 218 (R.I. 1999).

Pursuant to R.I. Gen. Laws § 10-3-11 , the court need not stay enforcement of an arbitration award proceeding unless sufficient cause is shown; by exercising statutory authority and confirming the arbitrator’s award, the court implicitly denied the motion to vacate and stay of enforcement. Aponik v. Lauricella, 844 A.2d 698, 2004 R.I. LEXIS 66 (R.I. 2004).

Excusable neglect by insured’s attorney under R.I. Super. Ct. R. Civ. P. 60 (b)(1) was not grounds to waive the requirement of the policy and R.I. Gen. Laws § 27-10.3-1 that the insured file a notice of an election to proceed with a lawsuit within 60 days of the arbitrator’s decision, because the arbitration was contractual, not court-annexed after suit was filed, and no final judgment or order had been entered when the insured sought relief from the consequences of his counsel’s neglect. Progressive Northern Ins. Co. v. Lyden, 986 A.2d 231, 2010 R.I. LEXIS 6 (R.I. 2010).

10-3-12. Grounds for vacating award.

In any of the following cases, the court must make an order vacating the award upon the application of any party to the arbitration:

  1. Where the award was procured by corruption, fraud or undue means.
  2. Where there was evident partiality or corruption on the part of the arbitrators, or either of them.
  3. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in hearing legally immaterial evidence, or refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been substantially prejudiced.
  4. Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

History of Section. P.L. 1929, ch. 1408, § 10; G.L. 1938, ch. 475, § 10; G.L. 1956, § 10-3-12 .

Law Reviews.

2002 Survey of Rhode Island Law, see 8 Roger Williams U.L. Rev. 421 (2003).

Andrew Plocica, 2017 Survey, Cases: Contract Law: Nappa Constr. Mgmt., LLC v. Flynn, 23 Roger Williams U. L. Rev. 624 (2018).

NOTES TO DECISIONS

In General.

An award may be vacated only if it is irrational or manifestly disregards the applicable contract provisions, or if it falls within one of the four statutorily prescribed grounds in this section. Aetna Casualty & Sur. Co. v. Grabbert, 590 A.2d 88, 1991 R.I. LEXIS 66 (R.I. 1991).

No matter how desirable the finality of an arbitration award may be, it is more important that an award be rendered free from any improprieties that affect the award and that could destroy public confidence in and the integrity of the arbitration process. Aetna Casualty & Sur. Co. v. Grabbert, 590 A.2d 88, 1991 R.I. LEXIS 66 (R.I. 1991).

Confirmation of an arbitration award is governed by R.I. Gen. Laws § 10-3-11 ; vacating an arbitration award is governed by R.I. Gen. Laws § 10-3-12 . State Dep't of Corr. v. R.I. Bhd. of Corr. Officers, 2003 R.I. LEXIS 35 (R.I. Feb. 3, 2003).

Arbitration award under motor vehicle policy provision, pursuant to R.I. Gen. Laws § 27-10.3-1 , required confirmation pursuant to R.I. Gen. Laws § 10-3-11 , where the arbitrator had determined that the insured had failed to prove sufficient injuries to support a determination that required his own insurer to compensate him under the uninsured/underinsured motorist provision of his insurance policy, R.I. Gen. Laws § 27-7-2.1 , and where the insured had not made a motion to vacate the arbitration award pursuant to R.I. Gen. Laws § 10-3-12 . Desjarlais v. USAA Ins. Co., 818 A.2d 645, 2003 R.I. LEXIS 46 (R.I. 2003).

Court properly refused to vacate, under R.I. Gen. Laws § 10-3-12 of the Rhode Island Arbitration Act, an award in favor of a builder based on allegations that the arbitrator manifestly disregarded the contract provisions. The record indicated that the arbitrator carefully considered the evidence before him, including the testimony from a building inspector who issued the certificate of occupancy, and the owners’ construction expert. Aponik v. Lauricella, 844 A.2d 698, 2004 R.I. LEXIS 66 (R.I. 2004).

Since there was no written arbitration decision, the court did not know and refused to speculate as to whether the arbitration panel considered an investor’s fraud in the inducement claim against a broker when the panel made its award, but such considerations would have been both proper and within the province of the panel, and would not have provided any basis to vacate the award; considering the latitude granted an arbitrator in both fashioning an award, as well as in deciding a remedy and in awarding interest, the arbitration panel did not disregard the law or act irrationally in its $72,000 award to the investor on his claim seeking $120,000, or in its award of interest from the commencement of the action. Carlsten v. Oscar Gruss & Son, Inc., 853 A.2d 1191, 2004 R.I. LEXIS 169 (R.I. 2004).

Superior court erred in vacating an arbitration award in favor of a passenger and in finding for a driver because the award was not procured by “undue means”; the change of opinion of the passenger’s doctor was due to his oversight of what the passenger’s medical record reflected rather than alleged underhanded behavior of the passenger’s counsel. Caffey v. Lees, 175 A.3d 478, 2017 R.I. LEXIS 131 (R.I. 2017).

Appeal.

Trial justice’s decision to vacate an award is reversed, where, although the party-appointed arbitrator’s contingent fee gave him a direct financial interest in the award that was absolutely improper, the objecting party failed to demonstrate the required causal nexus between the arbitrator’s improper conduct and the award that was ultimately decided upon. Aetna Casualty & Sur. Co. v. Grabbert, 590 A.2d 88, 1991 R.I. LEXIS 66 (R.I. 1991).

— Scope of Judicial Review.

In a statutory arbitration proceeding the parties may, by private agreement, enlarge the scope of judicial review. Bradford Dyeing Ass'n. v. J. Stog Tech. GmbH, 765 A.2d 1226, 2001 R.I. LEXIS 45 (R.I. 2001).

Trial court did not modify or correct the award pursuant to R.I. Gen. Laws § 10-3-14(b) , but instead properly remanded the award to the arbitrator to clarify whether the $150,000 punitive damages award was meant to be compensatory, which the arbitrator properly confirmed. Pier House Inn, Inc. v. 421 Corp., 812 A.2d 799, 2002 R.I. LEXIS 240 (R.I. 2002).

On review of an arbitration award, the trial court exceeded its scope of review when it held that certain consortium claims on behalf of an injured motorist’s children had not been extinguished by the arbitration agreement, since the issue of consortium claims had never been raised in the first place, and therefore were not submitted to arbitration. Leonard v. McDowell, 824 A.2d 1266, 2003 R.I. LEXIS 124 (R.I. 2003).

Arbitrator’s Powers.

It is a general rule that arbitrators may award interest even if not claimed, unless otherwise specifically provided by the parties in the agreement. Westminster Constr. Corp. v. PPG Indus., 119 R.I. 205 , 376 A.2d 708, 1977 R.I. LEXIS 1875 (1977).

In an action to value a corporate business upon the forced sale of one stockholder’s stock to another, the stockholder challenging an arbitrator’s valuation of his stock failed to carry his burden of showing that the arbitrator had exceeded his powers, where the parties’ agreement defined those powers very broadly. Ricci v. Marandola, 800 A.2d 401, 2002 R.I. LEXIS 170 (R.I. 2002).

Arbitrator exceeded his authority in a construction dispute because (1) the arbitrator found appellant owners improperly issued a stop-work order, despite the owners’ discretion to do so, (2) the arbitrator then found the builder wrongly declared the owners in breach and employed a fiction that the owners terminated the contract “for convenience,” interpreting the contract in a manner that failed to draw its essence from the parties’ agreement and manifestly disregarded a contractual provision, and (3) the award reached an irrational result by contradicting the arbitrator’s factual findings. Nappa Constr. Mgmt., LLC v. Flynn, 152 A.3d 1128, 2017 R.I. LEXIS 13 (R.I. 2017).

While the parties agreed in a collective bargaining agreement (CBA) to arbitrate the rights of part-time faculty in a university’s assignment of both academic and administrative responsibilities and an arbitrator plausibly interpreted the CBA to find that the university rescinded a long-term part-time faculty member’s special programs contract by unilaterally imposing a course per semester cap that was in violation of the CBA, the arbitrator exceeded his authority by imposing a cease-and-desist order that did not “draw its essence” from the CBA. The order pertained not only to courses, but also to administrative assignments not covered by the CBA. R.I. Council on Postsecondary Educ. v. Am. Ass'n of Univ. Professors, 176 A.3d 1101, 2017 R.I. LEXIS 132 (R.I. 2017).

Award Justified.

Since the trial court noted that the contract permitted the arbitrator to assess expenses against any party and the plaintiff cited major defects, in the absence of a transcript and based on the information gleaned from the record, it cannot be concluded that the arbitrator’s award produced an irrational result. Landers v. Mayhew, 666 A.2d 1161, 1995 R.I. LEXIS 232 (R.I. 1995).

Law firm did not demonstrate that the arbitrator exceeded the arbitrator’s authority, acted irrationally, or manifestly disregarded the law in denying a law firm a contingency fee, since the law firm was denied additional fees based upon an e-mail which terminated its services prior to the clients negotiating a sale of a restaurant. Gelfuso & Lachut, Inc. v. Mary's Italian Rest., Inc., 896 A.2d 721, 2006 R.I. LEXIS 43 (R.I. 2006).

Trial court properly confirmed an arbitration award in favor of a property owner because the arbitrator’s decision drew its essence from the contract between the contractor and the subcontractor and was sufficiently grounded in the contract to be within the scope of his authority; the arbitrator’s interpretation of the agreement was plausible and rational and did not manifestly disregard the law, and the damages awarded were rationally related to the costs incurred. Atwood Health Props., LLC v. Calson Constr. Co., 111 A.3d 311, 2015 R.I. LEXIS 36 (R.I. 2015).

Arbitration award was properly not vacated as to a part of a workers’ compensation offset attributable to the worker’s hip replacement when calculating damages, because (1) arbitrators did not quantify damages, so nothing showed that, but for including this sum in the offset, the worker’s damages would have been greater than the offset, as, aside from workers’ compensation, an offset arose from insurance payments, above which the damages award may not have risen, given minimal damages found, and (2) any error in not subtracting worker’s compensation benefits attributable to the hip replacement from the offset was a mere error of law not requiring the award to be vacated. DiSano v. Argonaut Ins. Co., 178 A.3d 982, 2018 R.I. LEXIS 20 (R.I. 2018).

Superior court properly confirmed an arbitration award and appointed a commissioner to carry out the terms of the award—dissolution of the parties’ joint tenancy—because the defendants failed to provide any evidence tending to establish any of the statutory factors that would warrant vacating the award; the award stated that a “final hearing” was held by means of a telephone conference and the defendants acknowledged that they spoke to the arbitrator on the phone. Public policy favors the finality of arbitration awards, and arbitration awards are presumed to be valid. Abdul-Karim v. Abdul-Karim, 206 A.3d 1255, 2019 R.I. LEXIS 67 (R.I. 2019).

Confirmation of an arbitration award was appropriate because a motorist’s testimony as to the speed at which the motorist was traveling at the time of an auto accident with a pedestrian, which differed from the motorist’s earlier testimony during the course of nonbinding arbitration proceedings that the motorist was traveling at a slightly higher speed, did not constitute procuring an arbitration award by undue means. Wiggins v. Pianka, 247 A.3d 135, 2021 R.I. LEXIS 19 (R.I. 2021).

Confirmation of an arbitration award was appropriate because the arbitrator found the motorist’s testimony to be more believable than the pedestrian’s testimony; and although it may not have been the best practice for the arbitrator to have destroyed soon after the arbitration proceeding the records submitted by the parties, the arbitrator’s actions were rational, did not exceed the arbitrator’s powers, and did not amount to undue means under Rhode Island law. Wiggins v. Pianka, 247 A.3d 135, 2021 R.I. LEXIS 19 (R.I. 2021).

Federal Preemption.

Since the complete irrationality ground for vacating an arbitration award under the state arbitration statute violates Congress’ policy as set forth in the federal statute, the state statute is preempted does not apply to any case in which the federal statute applied, whether in federal or state court. M&L Power Servs., Inc. v. American Networks Int'l, 44 F. Supp. 2d 134, 1999 U.S. Dist. LEXIS 5203 (D.R.I. 1999).

The state arbitration statute is not preempted by the federal arbitration statute in employment contract cases that do not involve interstate commerce, since the federal statute does not apply to such cases. M&L Power Servs., Inc. v. American Networks Int'l, 44 F. Supp. 2d 134, 1999 U.S. Dist. LEXIS 5203 (D.R.I. 1999).

Final Award.

Although this chapter contains no provision for appeal, where an arbitrator failed to resolve the question of the legality of an insurance policy exclusion, such failure constituted a failure to make a final and definite award and was grounds for vacating the decision pursuant to this section, hence plaintiff’s complaint citing this section sought proper relief and did not constitute an improper appeal or review of the decision; therefore, the complaint should not have been dismissed for failure to state a claim upon which relief could be granted pursuant to Rule 12, Rules of Civil Procedure. Dutson v. Nationwide Mut. Ins. Co., 119 R.I. 801 , 383 A.2d 597, 1978 R.I. LEXIS 616 (1978).

Inadequacy of Award.

Inadequacy of arbitration award standing alone was insufficient to support allegations of statutory violations. Romano v. Allstate Ins. Co., 458 A.2d 339, 1983 R.I. LEXIS 849 (R.I. 1983).

Where arbitrator could have reasonably inferred that plaintiff’s own negligence contributed to continuation of her medical problems, the court was unable to find that seemingly small award of damages was completely irrational and arbitrator’s decision was reinstated. Romano v. Allstate Ins. Co., 458 A.2d 339, 1983 R.I. LEXIS 849 (R.I. 1983).

Issues Not Arbitrable.

The question of whether a police officer’s injury resulted from a defendant tortfeasor’s negligence and in the context of a dangerous situation that could be reasonably anticipated as occurring in the course of the officer’s employment and not by any independent act of negligence by another was a mixed question of law and policy not capable of resolution by the arbitration panel. Peerless Ins. Co. v. Nault, 701 A.2d 320, 1997 R.I. LEXIS 271 (R.I. 1997).

Manifest Disregard of the Law.

Although manifest disregard of the law is not included in the statutory enumeration of permissible grounds for upsetting arbitration awards, the courts of this state have recognized this ground. Westminster Constr. Corp. v. PPG Indus., 119 R.I. 205 , 376 A.2d 708, 1977 R.I. LEXIS 1875 (1977).

Mistake of law which is not a ground for disturbing an award must be distinguished from manifest disregard of the law, where, for example, the arbitrators understand and correctly state the law, but proceed to disregard it. Westminster Constr. Corp. v. PPG Indus., 119 R.I. 205 , 376 A.2d 708, 1977 R.I. LEXIS 1875 (1977).

Where an arbitrator hears conflicting arguments or evidence and does not explain the reasons for his decision, the district court cannot vacate the resulting award based on manifest disregard for the law. M&L Power Servs., Inc. v. American Networks Int'l, 44 F. Supp. 2d 134, 1999 U.S. Dist. LEXIS 5203 (D.R.I. 1999).

Mistake of Fact.

Superior court did not err in denying plaintiff’s motion to vacate an arbitration award and in confirming the award in favor of defendant, who sought to be awarded extended severance benefits pursuant to the de facto termination provision of the employment agreement; even if the arbitrator had based his decision in part on a factual error that defendant had lost 60% of his overall duties, such a mistake would not be a proper basis on which to vacate the arbitration award based on the narrow conditions delineated in this section and the case law interpreting those conditions. Prospect CharterCARE, LLC v. Conklin, 185 A.3d 538, 2018 R.I. LEXIS 77 (R.I. 2018).

Mistake of Law.

An award which is otherwise final and conclusive is not subject to attack on the ground of mistake in law. Loretta Realty Corp. v. Massachusetts Bonding & Ins. Co., 83 R.I. 221 , 114 A.2d 846, 1955 R.I. LEXIS 42 (1955).

The fact that the legislature specifically omitted “error of law” in the statutory arbitration scheme as a ground for the vacating and setting aside of an arbitrator’s decision indicates an intent on the part of that body that an award under the statute should not be open to question on that ground. Bradford Dyeing Ass'n. v. J. Stog Tech. GmbH, 765 A.2d 1226, 2001 R.I. LEXIS 45 (R.I. 2001).

Trial court improperly conducted a de novo review of an arbitration award and modified the award based on an erroneous belief that the arbitrators had made a mistake of law in awarding prejudgment interest above the policy limits since a mistake of law was not a ground for disturbing an award; the award had to be confirmed since no grounds for modification or vacation of the award existed. Wheeler v. Encompass Ins. Co., 66 A.3d 477, 2013 R.I. LEXIS 87 (R.I. 2013).

Partiality of Arbitrator.

Where it was not shown that the trial justice clearly erred by finding that the defendant failed to meet its burden of showing that an arbitrator was evidently partial to the plaintiff or that he refused to hear pertinent evidence concerning the plaintiff’s mitigation of damages, the confirmation of the arbitration award was affirmed. Taylor v. Delta Elec. Power, Inc., 741 A.2d 265, 1999 R.I. LEXIS 218 (R.I. 1999).

Arbitrator had no knowledge that a partner in the arbitrator’s law firm was the brother of a partner in a law firm that represented one of the parties that appeared before the arbitrator, and the state supreme court declined to find that the arbitrator’s award was suspect because the arbitrator had constructive knowledge of the relationship, found that the relationship was insignificant and would not have been grounds for disqualifying the arbitrator even if the arbitrator had known about it, and affirmed the trial court’s judgment confirming the arbitrator’s award. V.S. Haseotes & Sons, L.P., by & Through Bentas v. Haseotes, 819 A.2d 1281, 2003 R.I. LEXIS 95 (R.I. 2003).

Granting summary judgment for an insured and vacating an arbitration award, based on the ground that a situation of “evident partiality” under R.I. Gen. Laws § 10-3-12(2) existed in the arbitration proceeding, was not error in view of the undisclosed fact that an insurance provider’s arbitrator was also its attorney in other matters; a court was required to vacate an award when there was evident partiality, and evident partiality was shown, given that the insurer’s arbitrator and the neutral arbitrator had assessed the insured’s damages at $45,000 and the insured’s arbitrator had assessed them at $636,000. The attorney-client relationship might well have had an undue influence on the neutral arbitrator, and the attorney-client relationship also gave rise to a rebuttable presumption, which was not rebutted, that there was a causal nexus between the conduct of the provider’s arbitrator and the majority’s low assessment of damages. McGinity v. Pawtucket Mut. Ins. Co., 899 A.2d 504, 2006 R.I. LEXIS 108 (R.I. 2006).

In seeking to vacate an arbitration award, an insured satisfied the test of Aetna Casualty & Surety Co. v. Grabbert, 590 A.2d 88, that an evident partiality under R.I. Gen. Laws § 10-3-12(2) existed in an arbitration proceeding. The insured showed that his insurer’s arbitrator did not disclose that he or she was also the insurer’s attorney in other matters, and the insured showed that there was a causal nexus between the party-appointed arbitrator’s improper conduct and the award that was ultimately decided on. McGinity v. Pawtucket Mut. Ins. Co., 899 A.2d 504, 2006 R.I. LEXIS 108 (R.I. 2006).

Collateral References.

Arbitrator’s viewing or visiting premises or property alone as misconduct justifying vacation of award. 27 A.L.R.2d 1160.

Construction and application of § 10(a)(4) of Federal Arbitration Act (9 USCS § 10(a)(4)) providing for vacating of arbitration awards where arbitrators exceed or imperfectly execute powers. 136 A.L.R. Fed. 183.

Construction and application of § 10(a)(1)-(3) of Federal Arbitration Act (9 USCS § 10(a)(1)-(3)) providing for vacating of arbitration awards where award procured by fraud, corruption, or undue means, where arbitrators evidence partiality or corruption and where arbitrators engage in particular acts of misbehavior. 141 A.L.R. Fed. 1.

Construction and effect of contractual or statutory provisions fixing time within which arbitration award must be made. 56 A.L.R.3d 815.

Influencing or attempting to influence decision as ground for avoidance of award. 8 A.L.R. 1082.

Refusal to enforce foreign arbitration awards on public policy grounds. 144 A.L.R. Fed. 481.

Setting aside arbitration award on ground of interest or bias of arbitrators — commercial, business, or real estate transactions. 67 A.L.R.5th 179.

Setting aside arbitration award on ground of interest or bias of arbitrators — insurance appraisals or arbitrations. 63 A.L.R.5th 675.

Setting aside arbitration award on ground of interest or bias of arbitrator — labor disputes. 66 A.L.R.5th 611.

Setting aside arbitration award on ground of interest or bias of arbitrators — torts. 64 A.L.R.5th 475.

Vacating arbitration awards as contrary to National Labor Relations Act. 147 A.L.R. Fed. 77.

Vacating on public policy grounds arbitration awards reinstating discharged employees. 142 A.L.R. Fed. 387.

10-3-13. Rehearing after vacation of award.

Where an award is vacated, and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.

History of Section. P.L. 1929, ch. 1408, § 10; G.L. 1938, ch. 475, § 10; G.L. 1956, § 10-3-13 .

NOTES TO DECISIONS

In General.

Trial court did not modify or correct the award pursuant to R.I. Gen. Laws § 10-3-14(b) , but instead properly remanded the award to the arbitrator to clarify whether the $150,000 punitive damages award was meant to be compensatory, which the arbitrator properly confirmed. Pier House Inn, Inc. v. 421 Corp., 812 A.2d 799, 2002 R.I. LEXIS 240 (R.I. 2002).

Collateral References.

Award or decision by arbitrators as precluding return of case to, or its reconsideration by, them. 104 A.L.R. 710.

10-3-14. Modification or correction of award.

  1. In any of the following cases, the court must make an order modifying or correcting the award, upon the application of any party to the arbitration:
    1. Where there was an evident material miscalculation of figures, or an evident material mistake in the description of any person, thing, or property referred to in the award.
    2. Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matters submitted.
    3. Where the award is imperfect in matter of form not affecting the merits of the controversy.
  2. The order must modify and correct the award, so as to effect the intent thereof and promote justice between the parties.

History of Section. P.L. 1929, ch. 1408, § 11; G.L. 1938, ch. 475, § 11; G.L. 1956, § 10-3-14 .

Law Reviews.

Matthew Strauss, 2016 Survey, Cases: Arbitration: Lemerise v. Commerce Ins. Co., 22 Roger Williams U. L. Rev. 704 (2017).

NOTES TO DECISIONS

Applicability.

Trial court did not modify or correct the award pursuant to R.I. Gen. Laws § 10-3-14(b) , but instead properly remanded the award to the arbitrator to clarify whether the $150,000 punitive damages award was meant to be compensatory, which the arbitrator properly confirmed. Pier House Inn, Inc. v. 421 Corp., 812 A.2d 799, 2002 R.I. LEXIS 240 (R.I. 2002).

Application Component.

Insurer’s objection to an insured’s petition to confirm an arbitration award satisfied the application component of this section necessary to consider whether the award should be modified. Wheeler v. Encompass Ins. Co., 66 A.3d 477, 2013 R.I. LEXIS 87 (R.I. 2013).

Award Confirmed.

Trial court properly confirmed an arbitration award in favor of a property owner because the arbitrator’s decision drew its essence from the contract between the contractor and the subcontractor and was sufficiently grounded in the contract to be within the scope of his authority; the arbitrator’s interpretation of the agreement was plausible and rational and did not manifestly disregard the law, and the damages awarded were rationally related to the costs incurred. Atwood Health Props., LLC v. Calson Constr. Co., 111 A.3d 311, 2015 R.I. LEXIS 36 (R.I. 2015).

Award Improperly Modified.

Trial court improperly conducted a de novo review of an arbitration award and modified the award based on an erroneous belief that the arbitrators had made a mistake of law in awarding prejudgment interest above the policy limits since a mistake of law was not a ground for disturbing an award; the award had to be confirmed since no grounds for modification or vacation of the award existed. Wheeler v. Encompass Ins. Co., 66 A.3d 477, 2013 R.I. LEXIS 87 (R.I. 2013).

It was error to modify an arbitration award, which had been awarded in favor of an alleged injured party and against an insurer in excess of the uninsured motorist policy limits, because it was patently erroneous for the trial justice to have heard new evidence (the arbitrator’s testimony) and considered documents not submitted to the arbitrator (the policy), thereby exceeding the limited authority granted in this section. Lemerise v. Commerce Ins. Co., 137 A.3d 696, 2016 R.I. LEXIS 49 (R.I. 2016).

Award Properly Vacated.

Trial justice was authorized, under the Public Works Arbitration Act (PWAA), R.I. Gen. Laws § 37-16-19 , to remand a case to the same arbitrator for a rehearing because the trial justice had clear grounds to vacate the second amended award under the PWAA, R.I. Gen. Laws § 37-16-18 , when the arbitrator’s findings with respect to the existence of a bond were indefinite and inconsistent. Drago Custom Interiors, LLC v. Carlisle Bldg. Sys., 57 A.3d 668, 2012 R.I. LEXIS 162 (R.I. 2012).

Collateral References.

Abandonment by mutual consent of award under arbitration. 32 A.L.R. 1365.

Quotient arbitration award or appraisal. 20 A.L.R.2d 958.

10-3-15. Notice of motion to vacate, modify, or correct award.

Notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his or her attorney within sixty (60) days after the award is filed or delivered, and before the award is confirmed, as prescribed by law for service of notice of a motion in an action at law. The court may make an order, to be served with the notice of the motion, staying the proceedings of the adverse party to enforce the award.

History of Section. P.L. 1929, ch. 1408, § 13; G.L. 1938, ch. 475, § 13; G.L. 1956, § 10-3-16 ; P.L. 1980, ch. 293, § 1.

Collateral References.

Participation in arbitration proceedings as waiver to objections to arbitrability under state law. 56 A.L.R.5th 757.

10-3-16. Judgment on award.

Upon the granting of an order confirming, modifying or correcting an award, judgment shall be entered in conformity with the award in the court within thirty (30) days, unless an appeal is taken as provided in this chapter, in which last case the order of the superior court shall pursue the mandate of the supreme court.

History of Section. P.L. 1929, ch. 1408, § 13; G.L. 1938, ch. 475, § 13; G.L. 1956, § 10-3-16 ; P.L. 1997, ch. 326, § 93.

NOTES TO DECISIONS

Arbitration Awards.

The confirmation of an arbitration award by the court is a judgment retroactive to the date of the award carrying interest pursuant to § 9-21-10 ; this interest is to be assessed by the court or the clerk of court. Ft. Hill Builders, Inc. v. National Grange Mut. Ins. Co., 682 F. Supp. 145, 1988 U.S. Dist. LEXIS 2585 (D.R.I. 1988), aff'd in part and rev'd in part, 866 F.2d 11, 1989 U.S. App. LEXIS 603 (1st Cir. 1989) (awarding interest at federal rate).

An arbitrator has the authority to award prejudgment interest and should do so. However, an arbitrator cannot be compelled to do so. Hart Eng'g Co. v. Pawtucket Water Supply Bd., 560 A.2d 329, 1989 R.I. LEXIS 122 (R.I. 1989).

Interest.

A superior court justice may not award interest pursuant to § 9-21-10 at the time he confirms an arbitration award. Paola v. Commercial Union Assurance Cos., 461 A.2d 935, 1983 R.I. LEXIS 986 (R.I. 1983).

Rhode Island permits a court to assess judgment interest on an arbitrator’s award. Ft. Hill Builders, Inc. v. National Grange Mut. Ins. Co., 682 F. Supp. 145, 1988 U.S. Dist. LEXIS 2585 (D.R.I. 1988), aff'd in part and rev'd in part, 866 F.2d 11, 1989 U.S. App. LEXIS 603 (1st Cir. 1989) (awarding interest at federal rate).

10-3-17. Papers filed for judgment.

Any party to a proceeding for an order confirming, modifying or correcting an award shall, when the order is entered, file with the clerk, for the entry of judgment thereon, the following papers:

  1. The agreement, the selection or appointment, if any, of an additional arbitrator or umpire, and each written extension of the time, if any, within which to make the award.
  2. The award.
  3. Each notice, affidavit or other paper used upon an application to confirm, modify or correct the award, and a copy of each order of the court upon such an application.

History of Section. P.L. 1929, ch. 1408, § 14; G.L. 1938, ch. 475, § 14; G.L. 1956, § 10-3-17 .

10-3-18. Effect of judgment.

The judgment so entered shall have the same force and effect, in all respects, as, and be subject to all the provisions of law relating to, a judgment in an action at law; and it may be enforced as if it has been rendered in an action at law in the court in which it is entered.

History of Section. P.L. 1929, ch. 1408, § 14; G.L. 1938, ch. 475, § 14; G.L. 1956, § 10-3-18 .

NOTES TO DECISIONS

Interest.

Arbitrators should add prejudgment interest to their awards unless the parties specifically provide otherwise by agreement. Paola v. Commercial Union Assurance Cos., 461 A.2d 935, 1983 R.I. LEXIS 986 (R.I. 1983).

The imposition of interest in arbitration proceedings is a matter addressed to the arbitrators. Mangiacapra v. Sentry Ins. Co., 517 A.2d 1041, 1986 R.I. LEXIS 552 (R.I. 1986).

Courts shall accord the finding made by an arbitrator or arbitrators concerning the imposition of interest the same deference that they have given other arbitration decisions in the past. Mangiacapra v. Sentry Ins. Co., 517 A.2d 1041, 1986 R.I. LEXIS 552 (R.I. 1986).

Awarding interest is within arbitrators’ authority. Waradzin v. Aetna Casualty & Sur. Co., 570 A.2d 649, 1990 R.I. LEXIS 37 (R.I. 1990).

Collateral References.

Extraterritorial enforcement of award. 73 A.L.R. 1460.

Pending action, enforcement of award upon submission of subject matter of, to arbitration, by judgment in same action. 42 A.L.R. 736.

Perjury as ground of attack on judgment entered upon award in arbitration. 99 A.L.R. 1202.

10-3-19. Appeal to supreme court.

Any party aggrieved by any ruling or order made in any court proceeding as authorized in this chapter may obtain review as in any civil action, and upon the entry of any final order provided in § 10-3-3 , or an order confirming, modifying or vacating an award, he or she may appeal to the supreme court as provided for appeals in civil actions, and the supreme court shall make such orders in the premises as the rights of the parties and the ends of justice require.

History of Section. P.L. 1929, ch. 1408, § 15; G.L. 1938, ch. 475, § 15; G.L. 1956, § 10-3-19 ; P.L. 1965, ch. 55, § 49; P.L. 1997, ch. 326, § 93.

Cross References.

Appeals in equity causes, § 9-24-1 et seq.

NOTES TO DECISIONS

Award Properly Confirmed.

Trial court properly confirmed an arbitration award in favor of a property owner because the arbitrator’s decision drew its essence from the contract between the contractor and the subcontractor and was sufficiently grounded in the contract to be within the scope of his authority; the arbitrator’s interpretation of the agreement was plausible and rational and did not manifestly disregard the law, and the damages awarded were rationally related to the costs incurred. Atwood Health Props., LLC v. Calson Constr. Co., 111 A.3d 311, 2015 R.I. LEXIS 36 (R.I. 2015).

Denial of Motion to Stay.

Party aggrieved by an order denying a motion under § 10-3-3 to stay litigation may appeal as of right from that order. R.I. Council on Postsecondary Educ. v. Hellenic Soc'y Paideia - R.I. Chapter, 202 A.3d 931, 2019 R.I. LEXIS 33 (R.I. 2019).

Denial of tenants’ motion for a stay of litigation over a lease dispute pending arbitration was appealable; by specifying in this section that “[a]ny party” may bring a direct appeal if aggrieved by “any ruling” authorized by chapter 3 of title 10, the General Assembly clearly intended to permit direct appeals from orders both granting and denying motions to stay brought under § 10-3-3 . R.I. Council on Postsecondary Educ. v. Hellenic Soc'y Paideia - R.I. Chapter, 202 A.3d 931, 2019 R.I. LEXIS 33 (R.I. 2019).

Undue Means.

Superior court erred in vacating an arbitration award in favor of a passenger and in finding for a driver because the award was not procured by “undue means”; the change of opinion of the passenger’s doctor was due to his oversight of what the passenger’s medical record reflected rather than alleged underhanded behavior of the passenger’s counsel. Caffey v. Lees, 175 A.3d 478, 2017 R.I. LEXIS 131 (R.I. 2017).

10-3-20. Severability.

If any provision of this chapter shall be declared unconstitutional or invalid, the unconstitutionality or invalidity shall in no way affect the validity of any other portion thereof which can be given reasonable effect without the part so declared unconstitutional or invalid.

History of Section. P.L. 1929, ch. 1408, § 16; G.L. 1938, ch. 475, § 16; G.L. 1956, § 10-3-20 .

10-3-21. Sureties — Bound to arbitration award on construction contract.

  1. If a contractor principal on a bond furnished to guarantee performance or payment on a construction contract and the claimant are parties to a written contract with a provision to submit to arbitration any controversy thereafter arising under the contract, the arbitration provisions shall apply to the surety for all disputes involving questions of the claimant’s right of recovery against the surety. Either the claimant, the contractor principal, or surety may demand arbitration in accordance with the written contract in one arbitration proceeding. The arbitration award shall decide all controversies subject to arbitration between the claimant, on the one hand, and the contractor principal and surety on the other hand, including all questions involving liability of the contractor principal and surety on the construction bond, but a claimant must file suit for recovery against the surety within the time limits set forth by law or by the terms of the bond when there are no applicable statutory provisions. The arbitration shall be in accordance with § 10-3-1 et seq. and the court shall enter judgment on the arbitration as provided in the agreement.
  2. The arbitrator or arbitrators, if more than one, shall make findings of fact as to the compliance with the requirements for recovery against the surety, and those findings of fact shall be a part of the award binding on all parties to the arbitration.

History of Section. P.L. 1985, ch. 456, § 1; P.L. 1997, ch. 326, § 93.

Chapter 4 Assignment for Benefit of Creditors

10-4-1. Residence of assignee — Bond.

Every assignee at common law for the benefit of creditors shall be a resident of the state and shall give bond to the clerk of the superior court, with some surety company authorized to do business in this state, as surety, in the amount of one thousand dollars ($1,000), conditioned on the faithful performance of his or her duties. All such bonds shall be filed in the office of the clerk of the superior court and may be sued upon in the proper court at the relation of any party interested or aggrieved, upon surety for costs being given to the court in which the suit is brought. Joint assignees may give joint or several bonds.

History of Section. P.L. 1902, ch. 984, § 1; C.P.A. 1905, § 1212; G.L. 1909, ch. 338, § 1; G.L. 1923, ch. 389, § 1; P.L. 1936, ch. 2390, § 1; G.L. 1938, ch. 585, § 1; G.L. 1956, § 10-4-1 .

Rules of Court.

Rules inapplicable except as to appeals to supreme court, see Super. Ct. R. Civ. P. Rule 81.

Comparative Legislation.

Assignment for benefit of creditors:

Mass. Ann. Laws ch. 203, § 40 et seq.

NOTES TO DECISIONS

Partial Assignment.

This law makes provision only for an assignment of all of an assignor’s property for the benefit of all creditors; in other words, it does not authorize either a partial or a special assignment as seems to be permissible under statutes in some jurisdictions. In re Assignment of Eugene, 93 R.I. 511 , 177 A.2d 184, 1962 R.I. LEXIS 13 (1962).

Collateral References.

Creditor’s participation in alleged act of bankruptcy as precluding him from filing or joining in involuntary petition. 6 A.L.R.3d 476.

Debtor’s transfer of assets to representative of creditors as effectuating release of unsecured claims, in absence of express agreement to that effect. 8 A.L.R.3d 903.

Official, as distinguished from individual, acts for which sureties on bond of assignee for creditors are liable. 50 A.L.R. 314.

Statutory priority as affecting validity of provision in deed or transfer to assignee for benefit of creditors for payment of attorney’s fees. 79 A.L.R.2d 513.

Subrogation of surety of assignee for creditors to claim of estate against third person who knew or was chargeable with notice that assignee’s transaction with him involved breach of assignee’s obligation. 134 A.L.R. 999.

Validity of corporation’s assignment for benefit of creditors as affected by president’s lack of authority from directors to make same. 10 A.L.R.2d 701.

“Wages” within meaning of priority provisions of Bankruptcy Act (11 USC § 64(a)(2)) or of state insolvency laws. 17 A.L.R.3d 374.

10-4-2. Filing of schedules and lists — Certificate of deed of assignment.

Every person making an assignment at common law for the benefit of creditors shall file with his or her assignee a sworn itemized schedule of all his or her assets, showing the amount and kind of his or her property, where located and the cash value thereof, to the best of his or her knowledge and belief, and a list of his or her creditors, stating their names, residences, and the amounts due each of them, and the evidences thereof and securities therefor, if any, held by them. The sworn itemized schedule and the bond required in § 10-4-1 shall be filed with the clerk of the superior court who shall certify on the deed of assignment that the assignee named in the deed of assignment has complied with the provisions of § 10-4-1 and this section. No city or town clerk shall accept any deed of assignment for record unless it shall bear the certificate of the clerk of the superior court showing compliance with § 10-4-1 and this section, and any deed of assignment which does not bear the certificate showing compliance with § 10-4-1 and this section shall be null and void.

History of Section. P.L. 1902, ch. 984, § 2; G.L. 1909, ch. 338, § 2; G.L. 1923, ch. 389, § 2; P.L. 1936, ch. 2390, § 1; G.L. 1938, ch. 595, § 2; G.L. 1956, § 10-4-2 ; P.L. 1997, ch. 326, § 94.

Cross References.

Assignment by imprisoned debtor, § 10-10-10 .

Assignment with poor debtor’s oath, §§ 10-13-24 , 10-13-25 .

Concealment or transfer of property with intent to defraud creditors, §§ 6-16-1 , 11-18-25 .

NOTES TO DECISIONS

Application to § 10-12-5 .

The requirement of this section as to filing of schedules and lists is not applicable to an assignment made under § 10-12-5 to obtain the liberty of the jail yard. Andrews v. Reynolds, 45 R.I. 74 , 120 A. 61, 1923 R.I. LEXIS 23 (1923).

10-4-3. Place of filing of papers.

In all proceedings arising under this chapter, whenever the assignor or some one of the assignors is an inhabitant of or located in Providence or Bristol county, the papers shall be filed in the clerk’s office of the superior court in Providence; and whenever the assignor or one of the assignors is an inhabitant of or located in either Newport, Kent, or Washington county, the papers shall be filed in the clerk’s office of the superior court in Newport, East Greenwich, or South Kingstown, respectively.

History of Section. P.L. 1902, ch. 984, § 9; C.P.A. 1905, § 1214; G.L. 1909, ch. 338, § 9; G.L. 1923, ch. 389, § 9; G.L. 1938, ch. 595, § 9; G.L. 1956, § 10-4-3 .

10-4-4. Recording and notice of assignments.

Every assignee under this chapter shall immediately cause the deed of assignment to be recorded in the registry of deeds in each town or city in which there may be real estate of the assignor on which it may operate, and in any event in the registry of deeds of the town or city where the assignor resides or is located, and shall immediately give public notice of his or her qualification, with notice to all creditors to present claims and all debtors to make payments to the assignee, in some newspaper published in the county in which the assignor resides or is located; and the assignee shall immediately also notify creditors by depositing like notice in the United States mail, postpaid, and directed to the creditors at their respective address as they appear in the schedule made by the assignor and filed with the assignee.

History of Section. P.L. 1902, ch. 984, § 3; G.L. 1909, ch. 338, § 3; G.L. 1923, ch. 389, § 3; G.L. 1938, ch. 595, § 3; G.L. 1956, § 10-4-4 ; P.L. 1997, ch. 326, § 94.

10-4-5. Removal or replacement of assignee.

Any assignee under this chapter may be removed by the superior court, for cause shown, upon petition of one-fifth (1/5) in amount of the creditors and upon at least five (5) days’ notice by mail, postpaid, directed to all creditors at their respective addresses and directed to the assignee. In case of the death, resignation, or removal of any assignee, a successor may be appointed by the superior court, upon the petition of any person interested, with like notice, as provided in this section, to all the creditors and to the assignor.

History of Section. P.L. 1902, ch. 984, § 3; C.P.A. 1905, § 1232; G.L. 1909, ch. 338, § 3; G.L. 1923, ch. 389, § 3; G.L. 1938, ch. 595, § 3; G.L. 1956, § 10-4-5 ; P.L. 1997, ch. 326, § 94.

NOTES TO DECISIONS

Accounting.

Question of fraud of the assignee in filing a false inventory could be heard by a master in proceedings under former statute initiated by petition for removal of assignee and for accounting. Lowitz & Becker v. Alden, 6 R.I. 512 , 1860 R.I. LEXIS 26 (1860).

Cause for Removal.

Acceptance of an assignment, knowing it to contain fraudulent preferences, is good cause for removal of the assignee. In re Removal of Durfee, 4 R.I. 401 , 1856 R.I. LEXIS 39 (1856).

Failure to file inventory and schedule required by former statute was not good cause for removal of assignee where assignee had reason to believe that creditors would not insist on filing. Case v. Mason, 15 R.I. 51 , 23 A. 48, 1885 R.I. LEXIS 57 (1885).

Conflict of interests was good cause for removal of an assignee who was the grantee in allegedly fraudulent conveyances by debtor. Brown v. Armstrong, 18 R.I. 537 , 30 A. 461, 1894 R.I. LEXIS 68 (1894).

Interested Parties.

Secured creditors, where the property was sufficient to satisfy their claims, were not interested in the assignment so as to qualify to petition for the removal of the assignee under former statute. In re Removal of Durfee, 4 R.I. 401 , 1856 R.I. LEXIS 39 (1856).

10-4-6. Effect of assignment on liens.

Every assignment at common law for the benefit of creditors shall be effectual to dissolve any attachment, levy, or lien placed upon the property of the assignor not more than four (4) months prior to the making of the assignment, and the costs in full of the attachment, levy, or lien shall constitute a preferred claim against the assigned estate as part of the costs of administering the trust. The property affected by the attachment, levy, or lien shall be deemed wholly discharged and released from the attachment, levy, or lien and shall pass to the assignee as part of the assigned estate, and the superior court may order such conveyance as may be necessary to carry the purposes of this section into effect; provided, that nothing contained in this section shall have the effect to destroy or impair any title obtained by the attachment, levy, or lien by a bona fide purchaser for value, who shall have acquired the attachment, levy, or lien without notice or reasonable cause of inquiry, or to dissolve, vacate, destroy or impair any lien which exists at common law or any lien for which provision is made in chapter 9 of title 6A, chapter 3 of title 9, chapters 28, 29, 30, 34, or 35 of title 34, or chapter 15 of title 39.

History of Section. P.L. 1902, ch. 984, § 4; C.P.A. 1905, § 1220; G.L. 1909, ch. 338, § 4; P.L. 1909, ch. 456, § 1; G.L. 1923, ch. 389, § 4; G.L. 1938, ch. 595, § 4; G.L. 1956, § 10-4-6 ; P.L. 1997, ch. 326, § 94.

NOTES TO DECISIONS

Attachment Bond.

Assignment did not vacate the obligation of an attachment bond even though it did dissolve the attachment. Eldred v. Avedisian, 27 R.I. 68 , 60 A. 677, 1905 R.I. LEXIS 26 (1905).

The surety on an attachment bond conditioned to pay judgment is not released by a bankruptcy adjudication within four months against the principal debtor. Andrews v. Jones, 46 R.I. 141 , 125 A. 356, 1924 R.I. LEXIS 75 (1924); Andrews v. Fain, 46 R.I. 165 , 125 A. 357, 1924 R.I. LEXIS 76 (1924).

Costs of Attachment.

Where attachment was dissolved by the institution of bankruptcy proceeding, attaching creditor was entitled to a preferred claim in bankruptcy for the costs of the attachment. In re Iroquois Mach. Co., 166 F. 629, 1909 U.S. Dist. LEXIS 415 (D.R.I. 1909).

Mortgages.

The term “lien” as used in this section does include mortgages. In re Najarian, 44 R.I. 499 , 119 A. 498, 1923 R.I. LEXIS 6 (1923).

Collateral References.

Landlord’s lien on goods in hands of assignee for creditors of tenant. 9 A.L.R. 322, 96 A.L.R. 249.

Mechanic’s lien, right of assignee for benefit of creditors of lien claimant to file. 83 A.L.R. 20.

Priority between claim of United States and employee’s claim for wages. 36 A.L.R.2d 1203.

Waiver of or estoppel to assert lien by filing claim with or receiving dividend from assignee for creditors. vidend from assignee for creditors. 55 A.L.R. 993; vidend from assignee for creditors. 55 A.L.R. 993.

10-4-7. Sale of assigned property — Continuation of business — Redemption of property subject to liens.

No assignee under this chapter shall sell any property of his or her assignor, except perishable goods, or in continuation of the business of the assignor in its ordinary course and without power to purchase new stock or to incur other than necessary expense for keeping the business along, without giving at least ten (10) days’ notice to all creditors by mail, postpaid, directed to all creditors at their respective addresses as they appear in the schedule made by the assignor, and stating that the property will be sold at public auction at a given time and place, and the assignee shall also give like notice of such auction sale in some public newspaper published in the town or city, or if none be there published, in some public newspaper published in the county where the auction sale will be held; provided, that private sale at a fixed price may be made by consent of all creditors named in the schedule made by the assignor, or by order of the superior court upon application of the assignee and after like ten (10) days’ notice by mail to such creditors. The assignee may also, upon like consent of the creditors, or like order of the superior court, redeem all mortgages, conditional contracts, pledges, and liens of or upon any property of the assignor conveyed under the assignment.

History of Section. P.L. 1902, ch. 984, § 5; C.P.A. 1905, §§ 1220, 1229; G.L. 1909, ch. 338, § 5; G.L. 1923, ch. 389, § 5; G.L. 1938, ch. 595, § 5; G.L. 1956, § 10-4-7 ; P.L. 1997, ch. 326, § 94.

NOTES TO DECISIONS

Highest Bidder.

Highest bidder at private sale was entitled to decree awarding sale to him where trial justice’s decision had accepted highest bid, subject to new arrangement satisfactory to all, and such arrangement was never made because highest bidder did not consent. In re Willett's Assignment, 67 R.I. 285 , 23 A.2d 194, 1941 R.I. LEXIS 104 (1941).

Collateral References.

Continuance of assignor’s business, validity and effect of provisions in assignments for creditors authorizing. 23 A.L.R. 199.

Estoppel of person by failure to disclose his interest in property sold by assignee for benefit of creditors. 50 A.L.R. 787.

Good will of business, sale of, by assignee of creditors as implying restriction against competition by former owner, in absence of provisions in that regard. 82 A.L.R. 1038.

Right of lessor to compensation out of estate for use of premises by receiver or assignee for creditors without adopting lease. 43 A.L.R. 734.

10-4-8. Demands for and protection of property by assignee.

The assignee shall demand, sue for, and receive from all persons all the estate in their possession conveyed by the deed of assignment; and the assignee may intervene in any action, suit, or proceeding relating to the property conveyed by the assignment and take upon himself or herself the prosecution or defense thereof.

History of Section. P.L. 1902, ch. 984, § 6; G.L. 1909, ch. 338, § 6; G.L. 1923, ch. 389, § 6; G.L. 1938, ch. 595, § 6; G.L. 1956, § 10-4-8 .

Cross References.

Life insurance, rights of beneficiaries to proceeds of policy, § 27-4-11 .

Notice of dishonor of negotiable instrument, § 6A-3-503 .

Presentment of bill of exchange to assignee for acceptance, §§ 6A-3-501 , 6A-3-504 .

Protection of person dealing in good faith with assignee, § 18-4-15 .

Settlement of debts and claims, § 18-4-8 .

Vehicle registration, effect of transfer, § 31-4-6 .

10-4-9. Effect on suits and proceedings of death, resignation, or removal of assignee.

No suit or proceeding pending at the time of the death, resignation, or removal of any assignee under this chapter, and to which he or she is a party, shall be abated by his or her death, resignation, or removal, but the suit or proceeding may be proceeded with or defended by his or her joint assignees or assignee or successor, in the same manner as though the suit or proceeding had been begun or was being defended by such joint assignees or assignee alone, or by such successor.

History of Section. P.L. 1902, ch. 984, § 7; G.L. 1909, ch. 338, § 7; G.L. 1923, ch. 389, § 7; G.L. 1938, ch. 595, § 7; G.L. 1956, § 10-4-9 ; P.L. 1997, ch. 326, § 94.

Cross References.

Surviving assignees, powers, § 18-4-9 .

10-4-10. Dividends to creditors — Assignee’s report — Discharge of surety on bond.

No assignee under this chapter at common law for the benefit of creditors shall, except by consent in writing of all the creditors of the assignor, pay any dividend until the expiration of the period of four (4) months from the making of the assignment. In case no petition in bankruptcy or insolvency has been filed within the four (4) month period, the assignee shall complete the administration of the assigned estate as soon as may be, and upon the payment of final dividend shall make itemized sworn report in writing to the superior court of all his or her proceedings under his or her trust; and the court, after at least ten (10) days’ notice by the assignee by mail postpaid, directed to the creditors of the assignor at the respective addresses as they appear in the schedule made by the assignor and filed with the assignee, of the time and place for hearing upon the assignee’s report, shall examine the assignee’s report and hear any parties interested, and upon the expiration of thirty (30) days after the approval of the assignee’s report, or upon a decision approving the assignee’s report by the supreme court upon appeal, or upon certification by the superior court as provided in this chapter, the surety upon any bond of the assignee shall be thereupon discharged.

History of Section. P.L. 1902, ch. 984, § 8; C.P.A. 1905, § 1213; G.L. 1909, ch. 338, § 8; G.L. 1923, ch. 389, § 8; G.L. 1938, ch. 595, § 8; G.L. 1956, § 10-4-10 ; P.L. 1997, ch. 326, § 94.

Cross References.

Embezzlement and fraudulent conversion by assignee as larceny, § 11-41-3 .

Employment security contributions, priority, § 28-43-16 .

Temporary disability insurance contributions, priority, § 28-40-10 .

Town taxes, priority, § 44-7-10 .

NOTES TO DECISIONS

Equity.

A creditor whose claim has been disallowed may bring an action in equity against the assignee to determine the validity of his claim. Osborn v. Colwell, 17 R.I. 196 , 21 A. 103, 1890 R.I. LEXIS 74 (1890).

— Adequate Remedy at Law.

Bill in equity to enforce the trusts of an assignment for benefit of creditors was not demurrable on ground that complainants had a full, complete and adequate remedy at law. Peabody v. Tenney, 18 R.I. 498 , 30 A. 456, 1894 R.I. LEXIS 60 (1894).

10-4-11. Record of proceedings.

The proceedings in all cases under this chapter shall be deemed matters of record; but the proceedings shall not be required to be recorded at large, but shall be filed and numbered in the office of the clerk of the superior court, and a docket only, or short memorandum thereof, shall be kept by the clerk of the supreme court, in books provided for that purpose.

History of Section. P.L. 1902, ch. 984, § 9; C.P.A. 1905, § 1214; G.L. 1909, ch. 338, § 9; G.L. 1923, ch. 389, § 9; G.L. 1938, ch. 595, § 9; G.L. 1956, § 10-4-11 .

10-4-12. Appeal to supreme court — Certification of questions.

Any party aggrieved by a decision or order of the superior court upon any question arising in any proceedings under this chapter may appeal to the supreme court by claiming the appeal in writing filed with the clerk at any time within thirty (30) days after the entry of the decision or order; and also the court may at once certify any question to the supreme court.

History of Section. P.L. 1902, ch. 984, § 9; C.P.A. 1905, § 1214; G.L. 1909, ch. 338, § 9; G.L. 1923, ch. 389, § 9; G.L. 1938, ch. 595, § 9; G.L. 1956, § 10-4-12 ; P.L. 1997, ch. 326, § 94.

NOTES TO DECISIONS

Highest Bidder.

Highest bidder at sale whose bid was never rejected was an aggrieved party and entitled to appeal decree awarding the sale of assigned goods to another party. In re Willett's Assignment, 67 R.I. 285 , 23 A.2d 194, 1941 R.I. LEXIS 104 (1941).

10-4-13. Chancery jurisdiction preserved — Provisions mandatory.

The provisions of this chapter shall not be construed to exclude the additional chancery jurisdiction of the supreme and superior courts. The provisions of this chapter are hereby declared to be mandatory and not directory.

History of Section. P.L. 1902, ch. 984, § 10; C.P.A. 1905, § 1218; G.L. 1909, ch. 338, § 10; G.L. 1923, ch. 389, § 10; G.L. 1938, ch. 595, § 10; G.L. 1956, § 10-4-13 .

Chapter 5 Attachment

10-5-1. “Trustee” defined.

The word “trustee,” wherever occurring in this chapter, shall be deemed to include the words “attorney”, “agent”, “factor”, or “debtor.”

History of Section. C.P.A. 1905, § 596; G.L. 1909, ch. 301, § 28; G.L. 1923, ch. 351, § 28; G.L. 1938, ch. 550, § 19; G.L. 1956, § 10-5-1 .

Compiler’s Notes.

Chapter 5 of title 10, insofar as it provided for the pre-judgment issue of units of attachment without judicial notice or judicial hearing, was held unconstitutional in McClellan v. Commercial Credit Corp., 350 F. Supp. 1013 (D.R.I.), aff’d, 409 U.S. 1120, 93 S. Ct. 935, 35 L. Ed. 2d 253 (1973), (citing Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972)). See the 1973 amendment to § 10-5-2 .

Cross References.

Trustee process, § 10-17-1 et seq.

Comparative Legislation.

Attachment:

Conn. Gen. Stat. § 52-279 et seq.

Mass. Ann. Laws ch. 223, § 42 et seq.

NOTES TO DECISIONS

Administrator.

An administrator of the estate of a deceased person was not an “attorney, agent, factor, trustee or debtor” for the purpose of attachment of a debt due from the estate. Conway v. Armington, 11 R.I. 116 , 1875 R.I. LEXIS 5 (1875).

Trustee.

The term “trustee” did not include an assignee for benefit of creditors. Cross v. Brown, 19 R.I. 220 , 33 A. 147, 1895 R.I. LEXIS 71 (1895), aff'd, 175 U.S. 396, 20 S. Ct. 131, 44 L. Ed. 211, 1899 U.S. LEXIS 1573 (1899).

The word “trustee” denotes the debtor or agent of the principal defendant against whom an action ex contractu only might be maintained in favor of the principal defendant. Cross v. Brown, 19 R.I. 220 , 33 A. 147, 1895 R.I. LEXIS 71 (1895), aff'd, 175 U.S. 396, 20 S. Ct. 131, 44 L. Ed. 211, 1899 U.S. LEXIS 1573 (1899); Ellbey v. Cunningham, 54 R.I. 4 , 168 A. 815, 1933 R.I. LEXIS 2 (1933).

Judgment debtor was a “trustee” within the meaning of the statute. Ellbey v. Cunningham, 54 R.I. 4 , 168 A. 815, 1933 R.I. LEXIS 2 (1933).

Collateral References.

Attachment and garnishment of funds in branch bank or main office of bank having branches. 12 A.L.R.3d 1088.

Client’s funds in hands of his attorney as subject of attachment or garnishment by client’s creditor. 35 A.L.R.3d 1094.

Construction and effect of statutory exemptions of proceeds of workmen’s compensation awards. 31 A.L.R.3d 532.

Employee retirement pension benefits as exempt from garnishment, attachment, levy, execution, or similar proceedings. 93 A.L.R.3d 711.

Family allowance from decedent’s estate as exempt from attachment, garnishment, execution, and foreclosure. 27 A.L.R.3d 863.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor. 86 A.L.R.5th 527.

Liability of creditor for excessive attachment or garnishment. 56 A.L.R.3d 493.

Liability of surety on private bond for punitive damages. 2 A.L.R.4th 1219.

Post-Snidach status of banker’s right to set off bank’s claim against depositor’s funds. 65 A.L.R.3d 1284.

Potential liability of insurer under liability policy as subject of attachment. 33 A.L.R.3d 992.

Recovery of damages for mental anguish, distress, suffering, or the like, in action for wrongful attachment, garnishment, sequestration, or execution. 83 A.L.R.3d 598.

Special bank deposits as subject of attachment or garnishment to satisfy depositor’s general obligations. 8 A.L.R.4th 998.

What constitutes malice sufficient to justify an award of punitive damages in action for wrongful attachment or garnishment. 61 A.L.R.3d 984.

10-5-2. Procedure.

  1. A court having jurisdiction over a defendant or his or her assets, including his or her personal estate or real estate, may authorize a plaintiff to attach the defendant’s assets, or any part thereof, after hearing on a motion to attach, notice of which has been given to the defendant as provided in this section. At the time of the commencement of the action, or at any time thereafter, a plaintiff must file a motion in the court having jurisdiction for authority to attach the defendant’s assets, including his or her personal or real estate, and the attachment motion must state the day, time and place of hearing and a copy must be served by the process server on the defendant or by leaving it at his or her last and usual place of abode with some person there at least five (5) days before the fixed date of hearing.
  2. If the defendant does not reside in the state, service of the attachment motion shall be made upon him or her by mailing a copy of the motion to attach, by certified mail, to his or her last known address and, if service is made in this manner, the plaintiff or his or her attorney must attach the sender’s receipt to an affidavit of compliance with this section by the plaintiff or his or her attorney and filing it with the case in the court.
  3. If the plaintiff after diligent search and by affidavit avers that he or she does not know of the defendant’s address, service on the defendant of the motion to attach may after order of the court be made by publication in some public newspaper, once, published in the town, city or county where the defendant’s assets are situated. If there is no public newspaper published in the town, city or county where the defendant’s assets are situated, then in some public newspaper published in the city of Providence. Provided, however, that in all actions where the plaintiff’s claim against the defendant has been reduced to a judgment, the defendant’s assets, including his or her personal estate and real estate, may be attached and may be subject to trustee process as set out in chapter 17 of this title in the same action in which the judgment has been entered.

History of Section. C.P.A. 1905, § 510; G.L. 1909, ch. 299, § 14; G.L. 1923, ch. 349, § 14; G.L. 1938, ch. 546, § 1; G.L. 1956, § 10-5-2 ; P.L. 1965, ch. 55, § 50; P.L. 1973, ch. 109, § 1; P.L. 1984, ch. 357, § 2; P.L. 1986, ch. 320, § 1; P.L. 1997, ch. 326, § 95.

Cross References.

Attachment, notice and hearing for prejudgment procedure, Super. Ct. R. Civ. P. Rule 4, Dist. Ct. R. Civ. P. Rule 4.

Replevin, notice and hearing required prior to seizure of property, Super. Ct. R. Civ. P. Rule 64, Dist. Ct. R. Civ. P. Rule 64.

Writs of mesne process, § 9-5-14 .

NOTES TO DECISIONS

Constitutionality.

The provisions of chapter 5 of title 10, for the pre-judgment issue of writs of attachment without judicial notice or judicial hearing were unconstitutional under the 5th and 14th amendments, as permitting a taking of property without due process of law. McClellan v. Commercial Credit Corp., 350 F. Supp. 1013, 1972 U.S. Dist. LEXIS 12919 (D.R.I. 1972), aff'd, 409 U.S. 1120, 93 S. Ct. 935, 35 L. Ed. 2d 253, 1973 U.S. LEXIS 3648 (1973), (citing Fuentes v. Shevin, 1972 U.S. LEXIS 42, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972)) (prior to the 1973 amendment).

An ex parte post-judgment attachment made for the purpose of securing quasi in rem jurisdiction in the Superior Court did not deprive defendant of property without due process of law. Black v. Black, 119 R.I. 127 , 377 A.2d 1308, 1977 R.I. LEXIS 1917 (1977).

A post-judgment attachment of property in one state to realize on a debt will satisfy the “fair play and substantial justice standards” of International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), if a court of competent jurisdiction in another state has determined the existence of the debt. Black v. Black, 119 R.I. 127 , 377 A.2d 1308, 1977 R.I. LEXIS 1917 (1977).

This provision, when used as part of a statutory scheme of post judgment attachment, is unconstitutional under U.S. Const., amend. 14 as permitting the taking of property without due process of law. Dionne v. Bouley, 583 F. Supp. 307, 1984 U.S. Dist. LEXIS 24988 (D.R.I. 1984), but see, 757 F.2d 1344 (1st Cir. 1985).

This provision, when part of a statutory scheme of post judgment attachment, violates U.S. Const., art. 6, cl. 2, by failing to protect social security beneficiaries from creditors’ claims, contrary to congress’ intent. Dionne v. Bouley, 583 F. Supp. 307, 1984 U.S. Dist. LEXIS 24988 (D.R.I. 1984), but see, 757 F.2d 1344 (1st Cir. 1985).

Actions in Which Attachment Lies.

This section has no application to claims arising ex delicto and the nature of the cause of action determines the applicability of this section. United States v. J. Tirocchi & Sons, Inc., 180 F. Supp. 645, 1960 U.S. Dist. LEXIS 5323 (D.R.I. 1960).

This section does not specifically preclude attachment in tort cases. Hatch v. O'Brien, 772 F. Supp. 1326, 1991 U.S. Dist. LEXIS 13848 (D.R.I. 1991).

Attachments in tort cases may be allowed if the two requirements of Rule 4 (j)(3) (now (m)(3)), Super. Ct. R. Civ. P., are satisfied, i.e., probability of success and the need for security. Hatch v. O'Brien, 772 F. Supp. 1326, 1991 U.S. Dist. LEXIS 13848 (D.R.I. 1991).

The plaintiffs and their constable were under no legal obligation to give advance warning and notice of an execution and levy upon the defendants’ automobile, since their procedure was pursuant to execution-levy (chapter 25 of title 9) and not by writ of attachment provided in this chapter. Had they given advance warning and notice, the automobile would most probably have disappeared from the constable’s view. What was important was that the defendants did in fact, after the levy, receive timely notice of the levy and the intended execution sale. Pezzello Bros. Fruit & Produce Co. v. Armenakes, 677 A.2d 907, 1996 R.I. LEXIS 181 (R.I. 1996).

Affidavit.
— Collateral Attack.

A defect in an affidavit does not render the attachment void where the defect has not been attacked by the debtor or his successors in title before judgment. Industrial Trust Co. v. Le Baron, 61 R.I. 69 , 200 A. 525, 1938 R.I. LEXIS 51 (1938).

— Formal Requisites.

In action against husband and wife affidavit stating claim as against the defendant in the singular was not fatally defective since use of the singular conformed exactly with the statute, and rule that the singular includes the plural would apply to affidavit. McMahon v. Perkins, 22 R.I. 116 , 46 A. 405, 1900 R.I. LEXIS 62 (1900).

Writ and affidavit are valid if the writ, when delivered to the officer for service, has indorsed thereon or annexed thereto the affidavit required, even though the affidavit bears a later date than the writ. Bradford Estate Co. v. Brown, 52 R.I. 103 , 157 A. 874, 1932 R.I. LEXIS 1 (1932).

— Necessary Allegations.

An affidavit setting forth the affiant’s belief as to the required facts did not satisfy the requirements of the statute. C. C. Greene & Bro. v. Tripp, 11 R.I. 424 , 1877 R.I. LEXIS 14 (1877).

A writ of attachment could not issue without an allegation that defendant, since contracting for the debt sued for, had owned property or received income which he had neglected or refused to apply in payment although requested to do so by the plaintiff. Kelley v. Force, 16 R.I. 628 , 18 A. 1037, 1889 R.I. LEXIS 75 (1889).

— Officer as Agent.

It is competent for an officer to make the affidavit as plaintiff’s agent and then, in his capacity as an officer, serve the writ. Carroll v. Sheehan, 12 R.I. 218 , 1878 R.I. LEXIS 67 (1878).

— Rebuttal of Allegations.

Allegations in the affidavit may be proved false by defendant. Kelley v. Force, 16 R.I. 628 , 18 A. 1037, 1889 R.I. LEXIS 75 (1889).

Appeal.

An order vacating a prejudgment attachment possesses elements of finality because the injury apprehended is clearly imminent and irreparable. Bonniecrest Dev. Co. v. Carroll, 478 A.2d 555, 1984 R.I. LEXIS 651 (R.I. 1984).

The court granted immediate review where a prejudgment attachment on real estate would have had serious consequences and precipitated a technical default in a multimillion-dollar project and doomed the chances of success of the project from the outset. Bonniecrest Dev. Co. v. Carroll, 478 A.2d 555, 1984 R.I. LEXIS 651 (R.I. 1984).

Attachment Prior to 1973 Amendment.

A prejudgment attachment of real estate, without prior notice and opportunity to be heard, commenced before the 1973 amendment to this section and the federal cases which held that the lack of such procedures was unconstitutional was upheld and the amendment and decisions given prospective application to proceedings commenced subsequent thereto. Marran v. Gorman, 116 R.I. 650 , 359 A.2d 694, 1976 R.I. LEXIS 1319 (1976).

Prejudgment Attachment.

Prejudgment attachment is not available as a remedy in tort actions against in-state defendants. Serra v. Ski-Pro, 651 A.2d 1222, 1994 R.I. LEXIS 280 (R.I. 1994).

— Bankruptcy.

Beneficiaries of a deceased restaurant co-owner, who with debtor/co-owner guaranteed the restaurant’s obligations under a lease, obtained a valid and perfected judicial lien on the debtor’s real property when they recorded their prejudgment writ of attachment and, as holders of a perfected judicial lien, were secured creditors for purposes of the bankruptcy law with respect to the real property attached; the bankruptcy trustee could not use his powers to avoid their claim, and the beneficiaries were allowed relief from the automatic stay to allow them to reduce their claim to judgment and levy on the property. In re Giordano, 188 B.R. 84, 1995 U.S. Dist. LEXIS 16127 (D.R.I. 1995).

Procedure.

Subsection (c) of this section does not absolve a plaintiff from the statutory requirement of filing a motion for authority to attach defendant’s assets. Kottis v. Cerilli, 627 A.2d 329, 1993 R.I. LEXIS 179 (R.I. 1993).

Property Subject to Attachment.

Under Rhode Island law “attachment” refers to a specific, detailed statutory procedure, through which a judge, after a hearing, issues a specific writ that a court officer leaves with a town clerk or recorder of deeds, which writ creates a lien on the property attached which is held in the custody of the law. Bogosian v. Woloohojian Realty Corp., 923 F.2d 898, 1991 U.S. App. LEXIS 482 (1st Cir. 1991).

— Bank Deposits.

Deposit in savings bank assignable by indorsement of depositor’s book was subject to attachment. Nichols v. Schofield, 2 R.I. 123 , 1852 R.I. LEXIS 13 (1852).

— Curtesy Initiate.

Tenancy by the curtesy initiate was not attachable for husband’s debts during lifetime of wife. Greenwich Nat'l Bank v. Hall, 11 R.I. 124 , 1875 R.I. LEXIS 8 (1875).

— Decedents’ Estates.

A debt due from the estate of a deceased person was not subject to foreign attachment. Conway v. Armington, 11 R.I. 116 , 1875 R.I. LEXIS 5 (1875).

— Judgment Debts.

A judgment debt could be garnished in the court rendering it. Ellbey v. Cunningham, 54 R.I. 4 , 168 A. 815, 1933 R.I. LEXIS 2 (1933).

— Property of Nonresidents.

A debt due to a nonresident by the garnishee may be attached. Cross v. Brown, 19 R.I. 220 , 33 A. 147, 1895 R.I. LEXIS 71 (1895), aff'd, 175 U.S. 396, 20 S. Ct. 131, 44 L. Ed. 211, 1899 U.S. LEXIS 1573 (1899).

Service.

An attachment is perfected once it is properly served, and any subsequent court approval of the attachment relates back to the original date of service. In re M & G Builders, 165 B.R. 90, 1994 Bankr. LEXIS 364 (Bankr. D.R.I. 1994).

Collateral References.

Action based upon statute as one in which attachment will lie. 26 A.L.R. 563, 51 A.L.R. 1386.

Administrator’s wrongful attachment, liability of estate. 44 A.L.R. 674, 127 A.L.R. 687.

Allegations as to fraudulently contracted debt or fraudulently incurred liability or obligation authorizing attachment, proof of. 39 A.L.R.2d 1265.

Attachment in alienation of affections or criminal conversation case. 67 A.L.R.2d 527.

Attack upon attachment after judgment because of defects in affidavit. 129 A.L.R. 779.

Discharge of attachment, or bond for its dissolution, by subsequent amendment of pleadings or the writ. 74 A.L.R. 912.

Information and belief, affidavits stating grounds of attachment on. 86 A.L.R. 588.

Intent to defraud, sufficiency of affidavit respecting as against objection that it is a mere legal conclusion. 8 A.L.R.2d 578.

Interest of spouse in estate by entireties as subject to attachment lien in satisfaction of his or her individual debt. 75 A.L.R.2d 1172.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one of the joint depositors. 11 A.L.R.3d 1465.

Jurat or signature of officer, omission from affidavit. 1 A.L.R. 1571, 116 A.L.R. 587.

Surety on bond given to prevent, or secure release of, attachment, right of, to attack attachment after recovery of judgment by plaintiff, on ground of defects in, or falsity of, affidavit. 89 A.L.R. 269.

Swearing to affidavit in attachment before unauthorized person as defect curable by amendment. 91 A.L.R. 917.

Waiver of defects in affidavit. 72 A.L.R. 122.

What is an action for “debt” within attachment or garnishment statute. 12 A.L.R.2d 787.

10-5-3, 10-5-4. Repealed.

History of Section. C.P.A. 1905, §§ 511, 512; G.L. 1909, ch. 299, §§ 15, 16; G.L. 1923, ch. 349, §§ 15, 16; G.L. 1938, ch. 546, §§ 2, 3; G.L. 1956, §§ 10-5-3 , 10-5-4; Repealed by P.L. 1965, ch. 55, § 51, effective January 10, 1966.

10-5-5. Writ of attachment after filing of equitable complaint.

In any civil action of an equitable character, at or after the filing of the complaint, the complainant may move the superior court, ex parte, to issue a writ of attachment, to run against the property of the defendants or any defendant in the cause; and the court, in its discretion, if the cause is of such a nature that an attachment of property is for the proper security of the complainant, shall on the motion, properly supported by affidavits to be filed in the cause, enter an order granting a writ of attachment, which writ may command the attachment of the real and personal estate of the defendant, including his or her personal estate in the hands or possession of any person, co-partnership or corporation, as the trustee of the defendant and his or her stock or shares in any banking association or other incorporated company, like a writ of attachment at the commencement of a civil action in conformity to the specific directions in the court’s order; except as provided in § 6A-7-602 , and shall be served in like manner and be subject to like incidents as a writ of attachment issued at the commencement of a civil action, and for such ad damnum, as shall be directed in the court’s order and stated in the writ. And all property so attached shall be held for the security of any final judgment which the complainant may obtain in his or her favor in the cause, in pursuance of the directions of the order granting the writ of attachment. If a writ of attachment runs against real property and title to the real property is held in the name of a partnership, the writ shall include the name of the partnership.

History of Section. C.P.A. 1905, § 523; G.L. 1909, ch. 299, § 27; G.L. 1923, ch. 349, § 27; G.L. 1938, ch. 546, § 4; G.L. 1956, § 10-5-5 ; P.L. 1960, ch. 147, § 3; P.L. 1965, ch. 55, § 50; P.L. 1985, ch. 93, § 3.

NOTES TO DECISIONS

Constitutionality.

This section does not contain any provision for exigency, nor does it furnish any other significant safeguards to protect a defendant from bearing the brunt of the issuance of an ex parte writ of attachment. Accordingly, by failing to provide a preattachment hearing without at least requiring a showing of some exigent circumstance, this section clearly falls short of the demands of due process and violates the Fourteenth Amendment to the United States Constitution and R.I. Const., art. 1, § 2 , and a writ of attachment issued thereunder was, therefore, invalid. Shawmut Bank v. Costello, 643 A.2d 194, 1994 R.I. LEXIS 185 , 1994 R.I. LEXIS 188 (R.I. 1994).

Affidavit.

Affidavits are not required to be attached to writ of attachment in equity since the affidavits must be filed before the writ is issued. Ladd v. Franklin Loan & Trust Co., 24 R.I. 311 , 53 A. 59, 1902 R.I. LEXIS 81 (1902).

The statute did not authorize issuance of writ of attachment or sequestration in tort action. Martin v. James B. Berry Sons' Co., 83 F.2d 857, 1936 U.S. App. LEXIS 2663 (1st Cir. 1936).

Bankruptcy.

Beneficiaries of a deceased restaurant co-owner, who with debtor/co-owner guaranteed the restaurant’s obligations under a lease, obtained a valid and perfected judicial lien on the debtor’s real property when they recorded their prejudgment writ of attachment and, as holders of a perfected judicial lien, were secured creditors for purposes of the bankruptcy law with respect to the real property attached; the bankruptcy trustee could not use his powers to avoid their claim, and the beneficiaries were allowed relief from the automatic stay to allow them to reduce their claim to judgment and levy on the property. In re Giordano, 188 B.R. 84, 1995 U.S. Dist. LEXIS 16127 (D.R.I. 1995).

Federal Court.

This section cannot be considered as the basis for an attachment issued by a federal court when such attachment was issued by the clerk without any action of the court. United States v. J. Tirocchi & Sons, Inc., 180 F. Supp. 645, 1960 U.S. Dist. LEXIS 5323 (D.R.I. 1960).

Order for Account.

Order for an account after service of writ of attachment was proper even though party was in court and had answered bill, but order was premature where complainant had not established the necessity of disclosure. Ladd v. Franklin Loan & Trust Co., 24 R.I. 311 , 53 A. 59, 1902 R.I. LEXIS 81 (1902).

An attachment which plaintiff obtained against real estate of defendants without applying to the court for the issuance thereof was properly vacated. Eidam v. Eidam, 108 R.I. 673 , 279 A.2d 413, 1971 R.I. LEXIS 1322 (1971).

Standing.

The defendant’s assertion that he owned some $900’s worth of the seized property was sufficient to provide standing to challenge the issuance of the writ of attachment. Shawmut Bank v. Costello, 643 A.2d 194, 1994 R.I. LEXIS 185 , 1994 R.I. LEXIS 188 (R.I. 1994).

Collateral References.

Equity suits, attachment statute as applicable to. 154 A.L.R. 95.

10-5-6. Writ in tort action against nonresident.

At the commencement of a civil action sounding in tort against a nonresident having property within the state, a writ of attachment may be issued from the superior court or any district court wherever the plaintiff in the action, his or her agent or attorney, shall make affidavit, to be endorsed thereon or annexed thereto, that the defendant is a nonresident, and that the plaintiff has a just cause of action against the defendant, upon which the plaintiff expects to recover a sum sufficient to give jurisdiction to the court to which the writ is returnable.

History of Section. C.P.A. 1905, § 524; G.L. 1909, ch. 299, § 28; G.L. 1923, ch. 349, § 28; G.L. 1938, ch. 546, § 5; G.L. 1956, § 10-5-6 ; P.L. 1966, ch. 1, § 11.

NOTES TO DECISIONS

Analogous Remedies.

This section does not authorize a libel in rem in admiralty to recover for wrongful death under chapter 7 of this title. Andrade v. United States, 107 F. Supp. 463, 1952 U.S. Dist. LEXIS 3828 (D.R.I. 1952).

Debts Subject to Attachment.

Debt owed to a foreign railroad corporation is not exempt simply because it arose out of interstate commerce. Johnson v. Union P. R. Co., 29 R.I. 80 , 69 A. 298, 1908 R.I. LEXIS 22 (1908).

Debt owed by domestic corporation which was also incorporated in two other states was subject to attachment. Johnson v. Union P. R. Co., 29 R.I. 80 , 69 A. 298, 1908 R.I. LEXIS 22 (1908).

Nonresidence.

A person who maintained his home in the state, although temporarily out of the state, was not a nonresident within the meaning of this section. Silva v. Superior Court, 46 R.I. 342 , 128 A. 212, 1925 R.I. LEXIS 20 (1925).

Automobile registration and number plates from another state may constitute evidence upon which to base affidavit of nonresidence of owner. Staples v. Spelman, 53 R.I. 244 , 165 A. 783, 1933 R.I. LEXIS 78 (1933).

The trial justice properly ruled in denying a motion to attach a resident-defendant’s real estate pursuant to a cause of action in tort. The state statutory attachment scheme itself manifests the legislature’s intent to prohibit attachment in tort cases filed against in-state defendants. Martin v. Lincoln Bar, 622 A.2d 464, 1993 R.I. LEXIS 93 (R.I. 1993).

Rights of Garnishee.

Freight car owned by foreign railroad corporation and in possession of domestic corporation could not be attached on a tort claim against foreign corporation, where domestic corporation had a right to use the freight car and the right would terminate only when car was delivered in another state. Johnson v. Union P. R. Co., 29 R.I. 80 , 69 A. 298, 1908 R.I. LEXIS 22 (1908).

Truth of Affidavit.

Truth of the affidavit may be attacked by motion to release the property if the defendant does not intend to challenge the jurisdiction of the court. Silva v. Superior Court, 46 R.I. 342 , 128 A. 212, 1925 R.I. LEXIS 20 (1925).

Court may discharge the attachment if it finds essential facts in affidavit not to be true. Silva v. Superior Court, 46 R.I. 342 , 128 A. 212, 1925 R.I. LEXIS 20 (1925).

Collateral References.

Attachment or garnishment as affected by trick or device by which the property of, or indebtedness to, nonresident was subjected to the jurisdiction. 37 A.L.R. 1255.

Foreign attachment or garnishment as available in action by nonresident against nonresident or foreign corporation upon a foreign cause of action. 14 A.L.R.2d 420.

Foreign corporation as a nonresident for purposes of attachment law of state in which it is doing business or is domesticated. 114 A.L.R. 1378.

Residence of partnership for purpose of statute authorizing attachment on ground of nonresidence. 9 A.L.R.2d 471.

What constitutes nonresidence for purpose of attachment. 26 A.L.R. 180.

10-5-7. Classes of property named in writ.

Whenever a writ of attachment can be issued by any court, it may command the attachment of the goods and chattels of the defendant and his or her real estate and his or her personal estate in the hands or possession of any person, copartnership or corporation, as his or her trustee, except as provided in § 6A-7-602 , and his or her stock or shares in any banking association or other incorporated company, and may be varied so as to command the attachment of one or more of the classes of property of the defendant.

History of Section. C.P.A. 1905, § 514; G.L. 1909, ch. 299, § 18; G.L. 1923, ch. 349, § 18; G.L. 1938, ch. 548, § 1; G.L. 1956, § 10-5-7 ; P.L. 1960, ch. 147, § 3.

Cross References.

Employees’ trusts, immunity, § 28-17-4 .

Employment security benefits, exemption, § 28-44-58 .

Exempt property generally, §§ 9-26-4 , 9-26-5 .

Fraternal society benefits, immunity, § 27-25-24 .

General assembly members, exemption, § 22-4-2 .

Married woman, liability of property to levy, § 15-4-13 .

Militia members, exemption of pay and allowances, § 30-7-9 .

Public assistance not subject to process, § 40-9-17 .

Redevelopment agency, property exempt, § 45-31-23 .

Temporary disability insurance, exemption of benefits, § 28-41-32 .

Workers’ compensation, immunity of claims, § 28-33-27 .

Collateral References.

Bank’s liability, under state law, for disclosing financial information concerning depositor or customer. 81 A.L.R.4th 377.

Branch banks, deposits in. 50 A.L.R. 1354, 136 A.L.R. 471.

Building and loan association, member’s interest in. 143 A.L.R. 1152.

Building and loan association stock, withdrawal value as basis of attachment or execution by creditor of member. 94 A.L.R. 1017.

Commissions of trustee. 143 A.L.R. 190.

Contingent remainder as subject to levy and sale by creditor. 60 A.L.R. 803.

Enforcement of claim for alimony or support, or for attorneys’ fees and costs incurred in connection therewith, against exemptions. 52 A.L.R.5th 221.

Federal control, levy on property of public utility under. 4 A.L.R. 1680, 8 A.L.R. 969, 10 A.L.R. 956, 11 A.L.R. 1450, 19 A.L.R. 678, 52 A.L.R. 296.

Growing crops as subject of levy and seizure. 103 A.L.R. 464.

Incompetent or infant under guardianship, property of, as subject to execution or attachment. 92 A.L.R. 919.

Interest subject to homestead right in others as subject to attachment or execution. 122 A.L.R. 1150.

Intoxicating liquor license as subject to execution or attachment. 148 A.L.R. 492.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor. 86 A.L.R.5th 527.

Judgment in tort action as subject of attachment pending appeal. 121 A.L.R. 420.

Liability of unassigned dower right to seizure for widow’s debt. 81 A.L.R. 1110.

Negotiable warehouse receipt, attachment of goods covered by. 40 A.L.R. 969.

Note or check as subject of levy and seizure. 41 A.L.R. 1003.

Pledgor’s interest as subject to attachment by pledgee for another debt. 126 A.L.R. 188.

Prisoner, money or other property taken from, as subject of attachment or seizure under execution. 16 A.L.R. 378, 154 A.L.R. 758.

Redemption money in hands of officer as subject to attachment or execution. 94 A.L.R. 1049.

Retirement or pension proceeds or annuity payments under group insurance as subject to attachment or garnishment. 28 A.L.R.2d 1213.

Safety-deposit box, levy upon contents of. 11 A.L.R. 225, 19 A.L.R. 863, 39 A.L.R. 1215.

Seat in chamber of commerce, board of trade, or stock exchange as subject of attachment, garnishment, or execution. 14 A.L.R. 284.

Vendee’s interest under conditional sales contract as subject to attachment or execution. 61 A.L.R. 781.

Vendee’s interest under executory contract as subject to execution or attachment. 1 A.L.R.2d 727.

10-5-8. Garnishment of wages restricted to amounts not exempt — Child support to have priority.

  1. Any writ of attachment, served as a writ of garnishment for the attachment of the personal estate of the defendant in the hand and possession of any employer of the defendant, shall be effective to attach so much only of such personal estate consisting of the salary or wages due and payable to the defendant, or to become in the future due and payable to the defendant, as is in excess of the amount of the defendant’s salary or wages exempt by law from attachment. And the garnishee, being the defendant’s employer, shall be required to make affidavit and shall be held liable for the defendant’s personal estate consisting of the salary or wages due and payable to the defendant or to become in the future due and payable to the defendant only in respect of the excess amount exempt from attachment. Any writ of garnishment served under the provisions of this section shall state the judgment amount, and the employer shall withhold sums not exempt by law until the amount of withholding equals the amount of the judgment. The employer shall be entitled to the sum of five dollars ($5.00), payable directly from the employee to the employer, for each writ of garnishment served upon the employer regarding any employee.
  2. Subject to any federal or state law to the contrary, any garnishment of wages for child support issued pursuant to § 15-5-25 , and any wage assignment pursuant to § 15-5-24 , or chapter 16 of title 15 shall take priority over any garnishment issued in accordance with this section. This priority shall occur whether or not the garnishment or assignment pursuant to § 15-5-24 or 15-5-25 or chapter 16 of title 15 occurs before or after any garnishment pursuant to this section. In addition, consistent with federal and state law, the state court system may develop a system for the collection of court imposed or assessed fines, costs, fees or other assessments, including restitution, through wage assignment procedures.

History of Section. G.L., ch. 351, § 30, P.L. 1932, ch. 1898, § 1; G.L. 1938, ch. 548, § 2; G.L. 1956, § 10-5-8 ; P.L. 1981, ch. 350, § 1; P.L. 1988, ch. 295, § 1; P.L. 1992, ch. 235, § 1; P.L. 1997, ch. 326, § 95.

Cross References.

Wages exempt, § 9-26-4 .

Wages held by employer as garnishee, § 28-14-11 .

Collateral References.

Sufficiency, as to content, of notice of garnishment required to be served upon garnishee. 20 A.L.R.5th 229.

Wrongful discharge: employer’s liability under state law for discharge of employee based on garnishment order against wages. 41 A.L.R.5th 31.

10-5-9. Method of attaching real estate.

The officer commanded by any writ to attach real estate, or the right, title, and interest of any defendant in real estate, shall attach the real estate by leaving an attested copy of the writ, with a copy of his or her doings thereon, with the town clerk of the town in which the real estate shall be situated, unless there be a recorder of deeds of the town, in which case he or she shall leave the copy with the recorder of deeds; and the town clerk or recorder of deeds, as the case may be, shall note upon the copy the time, as near as may be, when the copy was left with him or her, and shall also enter in a book, to be kept by him or her for that purpose, the names of the parties in the writ, including the name of any partnership set forth in the writ where any real property of a defendant being attached is held in a partnership name the amount of the damages claimed, the time when the copy was left with him or her, and the court to which the writ is returnable, and shall be entitled to demand and receive from the officer a fee of twenty-five cents ($0.25) in each case, and the officer shall in all cases, in accordance with applicable procedural rules, serve the defendant with a copy of the writ and his or her doings thereon.

History of Section. C.P.A. 1905, § 534; G.L. 1909, ch. 300, § 12; G.L. 1923, ch. 350, § 12; G.L. 1938, ch. 547, § 1; G.L. 1956, § 10-5-9 ; P.L. 1966, ch. 1, § 11; P.L. 1985, ch. 93, § 3.

Cross References.

Deed on real estate attached, §§ 9-26-19 , 9-26-20 .

Fees of town clerk, § 45-7-6 .

Priority of attachment as against mortgage to secure future loans, § 34-25-3 .

NOTES TO DECISIONS

Bankruptcy.

Beneficiaries of a deceased restaurant co-owner, who with debtor/co-owner guaranteed the restaurant’s obligations under a lease, obtained a valid and perfected judicial lien on the debtor’s real property when they recorded their prejudgment writ of attachment and, as holders of a perfected judicial lien, were secured creditors for purposes of the bankruptcy law with respect to the real property attached; the bankruptcy trustee could not use his powers to avoid their claim, and the beneficiaries were allowed relief from the automatic stay to allow them to reduce their claim to judgment and levy on the property. In re Giordano, 188 B.R. 84, 1995 U.S. Dist. LEXIS 16127 (D.R.I. 1995).

Description of Property.

Description of property in sheriff’s return was sufficiently certain where it described the street location and numbers of assessors’ plats and where complainant did not set forth in the bill that it owned other land to which the description might apply or that the reference to the plat was incorrect. Bradford Estate Co. v. Brown, 52 R.I. 103 , 157 A. 874, 1932 R.I. LEXIS 1 (1932).

Real Estate and Interests Therein.
— Buildings.

Buildings and permanent fixtures on realty could not be separately attached. Mayhew v. Hathaway, 5 R.I. 283 , 1858 R.I. LEXIS 30 (1858).

— Contingent Interests.

The term “real estate, or the right, title or interest of any defendant therein” is broad enough to include a contingent interest in real estate. Wood v. Watson, 20 R.I. 223 , 37 A. 1030, 1897 R.I. LEXIS 83 (1897).

— Equitable Interests.

The words “right, title and interest of any defendant therein” as used in this section are broad enough to include equitable as well as legal interests. Tucker v. Denico, 27 R.I. 239 , 61 A. 642, 1905 R.I. LEXIS 76 (1905); Mitchell v. Campbell, 48 R.I. 120 , 136 A. 249, 1927 R.I. LEXIS 22 (1927).

— Less Than Freehold.

Estates in lands and tenements of a duration of more than one year were real estate in the sense of the statute and could be attached only as provided in this section. Mayhew v. Hathaway, 5 R.I. 283 , 1858 R.I. LEXIS 30 (1858).

Service.

Where officer attached defendant’s realty in one county and left a copy of the writ with defendant personally in another county where defendant resided, it was unnecessary to leave a copy of the writ with the person in possession of the property. Remington v. Benoit, 19 R.I. 698 , 36 A. 718, 1897 R.I. LEXIS 8 (1897).

Service was not complete until a copy had been left with defendant. Kevorko v. Vaitkunas, 54 R.I. 8 , 168 A. 910, 1933 R.I. LEXIS 6 (1933).

— Tenancy by the Entireties.

A spouse’s interest in real property held by the entirety is legally sufficient to sustain a prejudgment attachment notwithstanding the fact that the interest is not subject to levy and sale on execution. Cull v. Vadnais, 122 R.I. 249 , 406 A.2d 1241, 1979 R.I. LEXIS 2189 (1979).

A tenancy by the entirety is not subject to levy on execution based upon a judgment against one spouse. Such an interest is, however, legally sufficient to support a valid attachment. In re Gibbons, 17 B.R. 373, 1982 Bankr. LEXIS 4889 (Bankr. D.R.I. 1982).

If a husband and wife do not convey their property before one spouse dies, and if a debtor/spouse survives the death of the other spouse, a creditor may enforce a prior attachment pursuant to an active, unsatisfied judgment, thus compelling the entirety property to be sold on an execution. In re Gibbons, 17 B.R. 373, 1982 Bankr. LEXIS 4889 (Bankr. D.R.I. 1982).

10-5-10. Value of goods attached.

Whenever a writ of attachment issued at the commencement of an action, or writ of mesne process, shall command the officer to whom the writ is directed to attach the goods and chattels of a defendant, the officer shall attach the goods and chattels to the value commanded in the writ, if so much can be found by him or her, and may attach any less value, if the plaintiff or his or her attorney shall give order therefor.

History of Section. C.P.A. 1905, § 535; G.L. 1909, ch. 300, § 13; G.L. 1923, ch. 350, § 13; G.L. 1938, ch. 547, § 2; G.L. 1956, § 10-5-10 ; P.L. 1965, ch. 55, § 50.

Cross References.

Delinquent corporate taxes, sale of property, §§ 44-8-10 , 44-8-11 .

Distress warrants, procedure on, § 10-8-1 .

Sheriffs, duties, § 42-29-1 .

Special deputy sheriffs to execute process, § 42-29-6 .

Town treasurer failing to deliver delinquent tax collector’s bond, § 44-6-8 .

Wage claim judgment, seizure of property to satisfy, § 28-14-27 .

10-5-11. Service of writ on defendant.

The officer making the attachment shall serve the defendant, as provided in applicable procedural rules, with a copy of the writ, having indorsed on the writ a general reference to the class or kind of goods and chattels so attached, together with a statement of the place in which they were found, and of the date and time of day of the attachment.

History of Section. C.P.A. 1905, § 536; G.L. 1909, ch. 300, § 14; G.L. 1923, ch. 350, § 14; G.L. 1938, ch. 547, § 3; G.L. 1956, § 10-5-11 ; P.L. 1965, ch. 55, § 50.

Rules of Court.

For method of service of writ in district court, see Dist. Ct. Civil Rule 4(m).

For method of service of writ in superior court, see Super. Ct. R. Civ. P. Rule 4(j).

Cross References.

Federal lands, execution of process on, §§ 42-1-2 , 42-2-8 .

Fee for serving writ, § 9-29-9 .

Negotiable bill of lading, surrender as prerequisite to attachment of goods, § 6A-7-602 .

Warehouse receipt, attachment of goods subject to, § 6A-7-602 .

NOTES TO DECISIONS

Amendment.

Where officer’s return did not show that he left writ of attachment with defendant or at his usual abode, a proposed amendment to the effect that he left a copy with defendant’s attorney in accordance with the directions of the defendant did not cure such defect. Sheldon v. Comstock, 3 R.I. 84 , 1854 R.I. LEXIS 10 (1854).

10-5-12. Custody of attached goods.

The officer shall keep the goods and chattels so attached in his or her custody, as security to satisfy the judgment or decree as the plaintiff may obtain, until by due process of law either he or she shall sell the goods and chattels or they shall be withdrawn from his or her custody.

History of Section. C.P.A. 1905, § 537; G.L. 1909, ch. 300, § 15; G.L. 1923, ch. 350, § 15; G.L. 1938, ch. 547, § 4; G.L. 1956, § 10-5-12 .

Cross References.

Assignment for benefit of creditors, effect, § 10-4-6 .

Compensation of sheriff for keeping of property, § 9-29-10 .

Execution against attached property, § 9-25-15 .

Replevied property, responsibility, § 34-21-12 .

Replevin action, defense by attaching creditor, § 34-21-13 .

10-5-13. Defendant’s bond.

The defendant in any writ upon which goods and chattels shall have been attached may, at any time within forty-eight (48) hours, exclusive of Sundays and legal holidays, after the attachment, deliver to the officer a bond in the penal sum of the amount of damages laid in the writ, signed by the defendant or someone in his or her behalf, with surety or sureties to the satisfaction of the officer, with a condition in the surety that the surety shall be null and void if the final judgment or decree in the action or cause in which the writ was served shall be immediately paid and satisfied after the rendition thereof.

History of Section. C.P.A. 1905, § 538; G.L. 1909, ch. 300, § 16; G.L. 1923, ch. 350, § 16; G.L. 1938, ch. 547, § 5; G.L. 1956, § 10-5-13 ; P.L. 1997, ch. 326, § 95.

Cross References.

Fee for taking bond, § 9-29-9 .

NOTES TO DECISIONS

Acceptance of Bond.

In taking a bond to secure attachment in place of property the officer is liable only if he fails to use reasonable care and diligence and to make such investigation and to exercise such sound judgment as a prudent man would use in important business affairs. Andrews v. Paine, 53 R.I. 20 , 163 A. 182, 1932 R.I. LEXIS 103 (1932).

Action Against Surety.

In suit against surety on bond, the real party in interest is the plaintiff in the original action but the officer as nominal party sues for plaintiff’s benefit. Andrews v. Paine, 53 R.I. 20 , 163 A. 182, 1932 R.I. LEXIS 103 (1932).

An officer who takes a bond to secure attachment in place of property, even if negligent in so doing, may sue surety in deceit for false warranty as to value of property standing as security. Andrews v. Paine, 53 R.I. 20 , 163 A. 182, 1932 R.I. LEXIS 103 (1932).

In suit in deceit against surety on bond to release attachment, the measure of damages is the amount of the security which the plaintiff has lost and which is needed for the satisfaction of the judgment. Andrews v. Paine, 53 R.I. 20 , 163 A. 182, 1932 R.I. LEXIS 103 (1932).

Assignment for Benefit of Creditors.

Creditor, by accepting dividend on assignment for benefit of creditors, does not forfeit right against surety on attachment bond. Easton v. Ormsby, 18 R.I. 309 , 27 A. 216, 1893 R.I. LEXIS 27 (1893).

Assignment for benefit of creditors did not discharge attachment bond where the attachment had been dissolved by acceptance of the bond. Easton v. Ormsby, 18 R.I. 309 , 27 A. 216, 1893 R.I. LEXIS 27 (1893); Eldred v. Avedisian, 27 R.I. 68 , 60 A. 677, 1905 R.I. LEXIS 26 (1905).

Bankruptcy of Defendant.

Surety on bond given under the statute, conditioned on satisfaction of the judgment, was not released by adjudication of bankruptcy of defendant within four months after the attachment. Andrews v. Jones, 46 R.I. 141 , 125 A. 356, 1924 R.I. LEXIS 75 (1924); Andrews v. Fain, 46 R.I. 165 , 125 A. 357, 1924 R.I. LEXIS 76 (1924).

Common-Law Bond.

Bond which did not conform with either this section or § 10-5-16 was nevertheless good as a common-law bond where it violated no statute and was made upon valid and lawful consideration. Easton v. Ormsby, 18 R.I. 309 , 27 A. 216, 1893 R.I. LEXIS 27 (1893).

Dissolution of Attachment.

Acceptance of a bond and surrender of the attached property to principal defendant worked a dissolution of the attachment, even though the bond did not meet the statutory requirements. Easton v. Ormsby, 18 R.I. 309 , 27 A. 216, 1893 R.I. LEXIS 27 (1893).

Judgment.

Where defendant appeared and filed an attachment bond, the judgment secured was in personam and the bond secured the payment of same. Burke v. Barnum & Bailey, 40 R.I. 71 , 99 A. 1027, 1917 R.I. LEXIS 13 (1917).

Recitals in Bond.

Where defendant in bond given under this section described itself as a corporation, it was estopped to deny its corporate existence. Burke v. Barnum & Bailey, 40 R.I. 71 , 99 A. 1027, 1917 R.I. LEXIS 13 (1917).

Rights of Surety.

Surety on common law bond given to release attachment did not have such a property right or right to possession in the property as to enable him to replevy such goods from a vendee of the principal. Schultz v. Grimwood, 27 R.I. 137 , 60 A. 1065, 1905 R.I. LEXIS 42 (1905).

Variance Between Bond and Record.

Surety on bond was discharged where, after delivery of bond, return day of writ had been changed and plaintiff entered writ on the new day, such variance between the bond and the record being fatal. Wilson v. Fiske, 22 R.I. 100 , 46 A. 272, 1900 R.I. LEXIS 54 (1900).

Collateral References.

Amendment of attachment bond. 47 A.L.R.2d 971.

Answering to merits or giving bond for release of attachment as waiver of objections to attachment. 72 A.L.R. 120.

Bankruptcy, obligation of surety on attachment bond as affected by attachment, defendant’s adjudication in. 68 A.L.R. 1331.

Bankruptcy of debtor within four months after attachment or execution as discharging surety on bond to release property. 36 A.L.R. 449, 1078 A.L.R. 1138.

Right of obligor in action on forthcoming bond or receipt for return of property seized under process to set up title in himself. 37 A.L.R. 1402.

Surety on bond given to prevent, right to attack attachment after recovery of judgment by plaintiff, on ground of defects in, or falsity of, affidavit. 89 A.L.R. 269.

10-5-14. Reduction of damages before bond.

If the defendant in the writ shall deem the damages laid in the writ excessive, he or she may, before giving bond under the provisions of this chapter, complain in writing to any justice of the court to which the writ is returnable, requesting their reduction; and the justice may, after due notice to the plaintiff in the writ, or to his or her attorney, and upon cause shown, reduce the damages, and the amount so fixed shall be the penal sum in the bond.

History of Section. C.P.A. 1905, § 539; G.L. 1909, ch. 300, § 17; G.L. 1923, ch. 350, § 17; G.L. 1938, ch. 547, § 6; G.L. 1956, § 10-5-14 .

10-5-15. Filing of bond and delivery of property to defendant.

Upon accepting a bond given to satisfy a judgment or decree as required in this chapter, the officer shall lodge the bond with the clerk of the court to which the writ in the action shall be returnable and shall immediately surrender the goods and chattels attached by him or her to the person whose interest in the goods and chattel shall have been attached, or from whose possession the goods and chattel were taken, by virtue of the writ.

History of Section. C.P.A. 1905, § 540; G.L. 1909, ch. 300, § 18; G.L. 1923, ch. 350, § 18; G.L. 1938, ch. 547, § 7; G.L. 1956, § 10-5-15 ; P.L. 1997, ch. 326, § 95.

NOTES TO DECISIONS

Return of Property.

Officer who had attached property was not required upon receiving bond to return it to the place from which it was removed. Clark v. Wilson, 14 R.I. 13 , 1882 R.I. LEXIS 5 (1882).

Status of Officer.

Failure of officer to record bond given to trustee to dissolve an attachment was not a valid defense to suit on bond by officer, since officer was merely nominal plaintiff. Wilson v. Donnelly, 19 R.I. 113 , 31 A. 966, 1895 R.I. LEXIS 42 (1895).

In taking a bond the officer is liable only if he fails to use reasonable care and diligence and to make such investigation and to exercise such sound judgment as a prudent man would use in important business affairs. Andrews v. Paine, 53 R.I. 20 , 163 A. 182, 1932 R.I. LEXIS 103 (1932).

Collateral References.

Posting of redelivery bond by defendant in attachment as waiver of damages for wrongful attachment. 57 A.L.R.2d 1376.

10-5-16. Surrender of attached goods on defendant’s bond.

Every officer having goods and chattels attached by him or her in his or her custody shall surrender the goods and chattel, at any time after the attachment, and before final judgment or decree, to the person whose interest in the goods and chattel has been attached, or from whose possession they have been taken, upon being tendered a bond by the defendant or someone in his or her behalf, with sufficient surety or sureties to the satisfaction of the officer, in double the value of the goods and chattels so attached, the value to be determined by the sworn appraisal of any two (2) or three (3) persons, one chosen by the director of the department of public safety and one by the defendant or his or her attorney, and the third by the creditor or his or her attorney, or in the penal sum of the amount of damages stated in the writ, with condition that the bond shall be null and void if, at any time after final judgment or decree rendered in the action or cause in which the attachment shall have been made, upon request therefor, the appraised value of the goods and chattels shall be paid, or the goods and chattels shall, in as good order and condition as when surrendered, be returned to the officer taking the bond, or to any officer who shall be charged with the service of an execution issued upon the judgment or decree rendered in the action or cause, unless the judgment or decree shall have been paid, or shall be immediately paid, together with the costs upon the execution, upon the making of the request for the return of the goods and chattels or the payment of their appraised value.

History of Section. C.P.A. 1905, § 542; G.L. 1909, ch. 300, § 20; G.L. 1923, ch. 350, § 20; P.L. 1926, ch. 798, § 1; G.L. 1938, ch. 547, § 9; G.L. 1956, § 10-5-16 ; P.L. 2012, ch. 324, § 23.

NOTES TO DECISIONS

Action on Bond.

Defendants in suit on bond were not entitled to new trial on the ground of a release given by plaintiff to principal defendant, where release was not pleaded in original action. Tucker v. Carr, 20 R.I. 477 , 40 A. 1, 1898 R.I. LEXIS 84 (1898).

Common-Law Bond.

Bond which did not conform with either this section or § 10-5-13 was nevertheless good as a common law bond where it violated no statute and was made upon valid and lawful consideration. Easton v. Ormsby, 18 R.I. 309 , 27 A. 216, 1893 R.I. LEXIS 27 (1893).

Death of Defendant.

An attachment bond is vacated if the defendant dies before final judgment, even though the action may proceed against the executor or administrator. Upham v. Dodge, 11 R.I. 621 , 1877 R.I. LEXIS 62 (1877).

Delivery of Bond in Escrow.

Bond cannot be delivered to the obligee as an escrow to take effect upon a condition not appearing on its face but must be delivered to a stranger or it will become absolute and parol evidence of conditions qualifying it will be inadmissible. Easton v. Driscoll, 18 R.I. 318 , 27 A. 445, 1893 R.I. LEXIS 41 (1893).

Estoppel to Deny Attachment.

One who by giving statutory bond obtains release of goods and chattels attached is estopped from denying the attachment. Easton v. Driscoll, 18 R.I. 318 , 27 A. 445, 1893 R.I. LEXIS 41 (1893).

Liability of Obligor.

Where the condition of the bond is in the alternative, that the goods be returned or that the judgment be paid, the liability of the obligor is based on that alternative that will be least onerous to him. Pearce v. Maguire, 17 R.I. 61 , 20 A. 98, 1890 R.I. LEXIS 39 (1890).

Where a condition of the bond is that the goods be returned but they have meanwhile been sold, the obligor may discharge the bond by paying the value of the goods. Pearce v. Maguire, 17 R.I. 61 , 20 A. 98, 1890 R.I. LEXIS 39 (1890).

Refusal of Bond.

Trial court, in allowing fees of attaching officer, could consider whether officer’s refusal of bond was reasonable. Superior Glass Co. v. District Court of Sixth Judicial Dist., 48 R.I. 4 , 135 A. 50, 1926 R.I. LEXIS 2 (1926).

Return of Property.

It was not necessary that officer have an execution in order to make demand for return of property surrendered to defendant under bond. Tucker v. Carr, 20 R.I. 477 , 40 A. 1, 1898 R.I. LEXIS 84 (1898).

10-5-17. Release of real estate on bond.

The director of the department of public safety or his or her designee wherein any officer commanded by any original writ or writ of mesne process to attach the real estate or right, title, and interest in the real estate of any defendant has attached the real estate or defendant’s right, title, and interest therein, by himself or herself release and discharge the attachment upon the public records at any time after the attachment and before final judgment or decree:

  1. Upon being tendered a bond, running to the division of sheriffs, by the defendant or someone in his or her behalf with sufficient surety, which surety shall be a surety corporation authorized so to act in this state, in the penal sum of the amount of damages stated in the writ, with condition that the bond shall be null and void if there is a settlement or discontinuance of the action or cause, or if the final judgment or decree in the action or cause in which the writ of attachment was served shall be immediately paid and satisfied after the rendition of the final judgment or decree, or if the execution issued in the writ be returned satisfied, or if final judgment or decree in the action or cause is for the defendant, or upon the happening of any event which, ipso facto, would have resulted in the extinguishment of the lien of the attachment had the attachment not been released and discharged pursuant to the provisions of this section; or
  2. Upon payment by a defendant, or by someone in his or her behalf, of the amount of damages stated in the writ, into the registry of the court in which the action or cause is then pending, and the clerk thereof shall immediately notify the sheriff of the fact of the payment and thereafter shall pay from the amount so deposited to the plaintiff, if final judgment or decree is in his or her favor, so much thereof as may be required to satisfy his or her execution, and shall pay the balance, if any, of the amount so deposited, with actual accrued interest, if any, to the defendant, and if judgment or decree in the action or cause is for defendant, in the event upon presentation of execution in his or her favor, the amount so deposited, with actual accrued interest, if any, shall be immediately paid to the defendant, but such amount may at any time be paid by the clerk as the parties may by their agreement stipulate, or as the court upon motion of any party in interest may direct.

History of Section. G.L. 1923, ch. 350 § 20; P.L. 1926, ch. 798, § 1; G.L. 1938, ch. 547, § 9; G.L. 1956, § 10-5-17 ; P.L. 1961, ch. 147, § 1; P.L. 1997, ch. 326, § 95; P.L. 2012, ch. 324, § 23.

NOTES TO DECISIONS

Money to Release Attachment.

Plaintiff who receives money for the release of an attachment has at best a right to retain the money to be applied against such judgment as he may obtain for the debt. Everett v. Cutler Mills, 52 R.I. 330 , 160 A. 924, 1932 R.I. LEXIS 59 (1932).

10-5-17.1. Discharge of sheriff’s bond for want of action.

The prejudgment lien against the real estate described in a sheriff’s bond, created by the recording of the sheriff’s bond with the land evidence records of any city or town shall be discharged and dissolved and no longer a lien upon the real estate described in the lien if no action has been taken to enforce the bond for a period of ten (10) years from the date of the recording.

History of Section. P.L. 1986, ch. 377, § 1.

10-5-18. Reduction of damages or partial release of property.

If the defendant in any writ shall deem the damages stated in the writ excessive, or if the property, either real or personal, held under any attachment, shall greatly exceed in value the amount of the damages stated in the writ, the defendant may, at any time before final judgment or decree, complain in writing to any justice of the court to which the writ is returnable, or to the superior court if the writ shall be pending in the superior court upon appeal from a district court, requesting the reduction of the amount of the damages or a release of a portion of the property attached; and the justice or court may, after due notice to the plaintiff in the writ, or to his or her attorney, and upon cause shown, order the damages to be reduced, or a part of the property attached to be released.

History of Section. C.P.A. 1905, § 543; G.L. 1909, ch. 300, § 21; G.L. 1923, ch. 350, § 21; G.L. 1938, ch. 547, § 10; P.L. 1942, ch. 1142, § 1; G.L. 1956, § 10-5-18 .

NOTES TO DECISIONS

Release.

An attachment of realty regularly and properly made could be released only by compliance with the provisions of this section. Wood v. Watson, 20 R.I. 223 , 37 A. 1030, 1897 R.I. LEXIS 83 (1897); Seiler Coal Co. v. Superior Court, 47 R.I. 76 , 129 A. 811, 1925 R.I. LEXIS 60 (1925) (decisions prior to enactment of § 10-5-17 ).

Where motion to release attachment of real estate contained no statement of grounds for urging the release and did not appear to be based on this section, such motion was quashed. Seiler Coal Co. v. Superior Court, 47 R.I. 76 , 129 A. 811, 1925 R.I. LEXIS 60 (1925) (decision prior to enactment of § 10-5-17 ).

10-5-19. Attachment of corporate stock or trust estate.

Whenever a writ shall command the attachment of the shares of the defendant in any corporation, or of his or her personal estate in the hands of any person, co-partnership or corporation, as trustee, it shall be served by leaving an attested copy of the writ, having endorsed on the writ the date and time of day of the service, with the person or some member of the co-partnership named in the writ as trustee, or at the usual place of business of the person or co-partnership with some person there employed; or if the trustee, or the corporation whose shares shall be directed to be attached, shall be a bank, with the cashier, treasurer or secretary of the bank; if an insurance company, with the president or secretary of the company; and if any other corporation, it shall be served by leaving an attested copy of the writ, having endorsed on the writ the date and time of day of the service, with the treasurer of the corporation, or the person executing the duties of treasurer of the corporation, or with the attorney of the corporation appointed with authority to accept service of process against the corporation in this state, or with any other officer of the corporation, or with the agent or superintendent of the corporation, or at the office of the corporation with some person there employed, and shall tender to the person upon whom service is made the sum of two dollars ($2.00) and his or her traveling fee as witness in the superior court, and the sum of one dollar ($1.00) and like traveling fee if the writ is returnable in any other court; and the officer shall also serve the defendant in accordance with applicable procedural rules.

History of Section. C.P.A. 1905, § 544; G.L. 1909, ch. 300, § 22; G.L. 1923, ch. 350, § 22; G.L. 1938, ch. 547, § 11; G.L. 1956, § 10-5-19 ; P.L. 1966, ch. 1, § 11.

Cross References.

Attachment of corporate stock, § 10-5-19 .

Exemption of consumers’ co-operative membership, § 7-8-25 .

NOTES TO DECISIONS

Appeal and Review.

Dismissal of trustee was appealable only on appeal from the principal judgment. Clapp v. Smith, 16 R.I. 368 , 16 A. 246, 1888 R.I. LEXIS 66 (1888).

Persons Subject to Process.
— Municipal Corporations.

City was subject to garnishee process. Wilson v. Lewis, 10 R.I. 285 , 1872 R.I. LEXIS 21 (1872).

— Nonresidents.

A nonresident temporarily in the state was not subject to garnishment. Cronin v. Foster, 13 R.I. 196 , 1881 R.I. LEXIS 8 (1881).

Process.

The rule that the names of the parties must distinctly appear as a part of the process applies to proceedings against a trustee. Sheffield & Main v. Barber, 14 R.I. 263 , 1883 R.I. LEXIS 53 (1883); King v. McElroy, 25 R.I. 222 , 55 A. 638, 1903 R.I. LEXIS 50 (1903).

— Service.

Action against garnishee would be dismissed where service of the original writ of attachment was not made by leaving attested copy at any of the places designated by the statute. Leonhard v. John Hope & Sons Engraving & Mfg. Co., 21 R.I. 449 , 44 A. 305, 1899 R.I. LEXIS 89 (1899).

Garnishee did not waive its right to the fees provided by this section by accepting a lesser amount where it did not appear that it knew of the insufficiency of the amount. Baxter v. H. W. Tyas Co., 50 R.I. 452 , 148 A. 600, 1930 R.I. LEXIS 13 (1930).

Garnishee which was not paid the proper fees at the time of the service of the writ was not liable for failure to account. Baxter v. H. W. Tyas Co., 50 R.I. 452 , 148 A. 600, 1930 R.I. LEXIS 13 (1930).

Fact that defendant transacted business under an assumed name without complying with the requirements of § 6-1-1 did not relieve plaintiff of the necessity of having process duly served in accordance with this section. Leverton v. Unwin, 72 R.I. 204 , 49 A.2d 472, 1946 R.I. LEXIS 63 (1946).

Property Attachable.
— Bank Deposits.

Deposit in savings bank assignable by endorsement of depositor’s book was subject to attachment. Nichols v. Schofield, 2 R.I. 123 , 1852 R.I. LEXIS 13 (1852).

Bank deposit in name of defendant as agent was subject to garnishment where no other person appeared to claim the fund and no person was known by the bank as principal. Proctor v. Greene, 14 R.I. 42 , 1882 R.I. LEXIS 14 (1882).

— Corporate Stock.

This section seems to attach the legal title to corporate stock as it is shown on the books of the corporation. Beckwith v. Burrough, 13 R.I. 294 , 1881 R.I. LEXIS 18 (1881).

— — Certificate.

Proceeding to attach stock of nonresident defendant in domestic corporation was not valid where certificate itself was not seized or defendant restrained from transferring stock. Westerman v. Gilbert, 119 F. Supp. 355, 1953 U.S. Dist. LEXIS 4137 (D.R.I. 1953).

— — Equitable Interest.

An equitable or executory right or interest in corporate stock was not attachable. Lippitt v. American Wood Paper Co., 15 R.I. 141 , 23 A. 111, 1885 R.I. LEXIS 65 (1885).

Shares assigned to debtor but never transferred to him on the corporate books could not be attached where they were assignable only on the books of the corporation. Lippitt v. American Wood Paper Co., 15 R.I. 141 , 23 A. 111, 1885 R.I. LEXIS 65 (1885).

— — Foreign Corporations.

Shares of a nonresident debtor in a foreign corporation cannot be attached since situs is in the state where the corporation is domiciled. Ireland v. Globe Milling & Reduction Co., 19 R.I. 180 , 32 A. 921, 1895 R.I. LEXIS 66 (1895).

— — Fraudulent Transfers.

Shares of corporate stock were liable to attachment and execution as property of the defendant notwithstanding prior transfer to defraud creditors. Beckwith v. Burrough, 14 R.I. 366 , 1884 R.I. LEXIS 17 (1884).

— Decedents’ Estates.

A debt due from the estate of a deceased person was not subject to attachment as against the personal representative. Conway v. Armington, 11 R.I. 116 , 1875 R.I. LEXIS 5 (1875).

— Judgment Debt.

Judgment debt was subject to attachment in proceedings in the same court where entered. Ellbey v. Cunningham, 54 R.I. 4 , 168 A. 815, 1933 R.I. LEXIS 2 (1933).

Collateral References.

Shares of corporate stock as subject of execution or attachment. 1 A.L.R. 653.

Situs of corporate stock, or stock in joint-stock company, for purpose of execution or attachment. 122 A.L.R. 338.

10-5-20. Account rendered by corporate officer.

Subject to the provisions of § 6A-8-317, whenever any banking association or incorporated company shall be served with a copy of a writ attaching its stock or shares, if a bank, its cashier, if an insurance company, its president or secretary, and if any other corporation, its treasurer or the person executing the duties of treasurer, shall render an account upon oath to the court to which the writ shall be returnable, of what stock or shares the defendant had in the company at the time of the serving of the writ, except as provided in § 6A-4-303 . The account shall be filed, in any district court, within ten (10) days after the service of the writ. The account shall be filed, in any other court, within twenty (20) days after the service of the writ.

History of Section. C.P.A. 1905, § 575; G.L. 1909, ch. 301, § 9; G.L. 1923, ch. 351, § 9; P.L. 1930, ch. 1608, § 1; G.L. 1938, ch. 547, § 24; P.L. 1939, ch. 659, § 2; G.L. 1956, § 10-5-20 ; P.L. 1960, ch. 147, § 3; P.L. 1966, ch. 1, § 12.

Compiler’s Notes.

Section 6A-8-317, referred to in this code section, was repealed.

Cross References.

Account by trustee as to attached property, § 10-17-2 .

NOTES TO DECISIONS

Person Making Affidavit.

It is not necessary that the affidavit be made by the same officer upon whom the writ is served. Duke v. Rhode Island Locomotive Works, 11 R.I. 599 , 1877 R.I. LEXIS 58 (1877).

Affidavit by assistant treasurer was sufficient. Duke v. Rhode Island Locomotive Works, 11 R.I. 599 , 1877 R.I. LEXIS 58 (1877).

Stock Included in Account.

The officer is required to render an account of the stock standing in the name of the defendant on the books of the corporation but not those shares transferred in any other manner. Lippitt v. American Wood Paper Co., 15 R.I. 141 , 23 A. 111, 1885 R.I. LEXIS 65 (1885).

10-5-21. Filing of officer’s account — Certification.

The disclosure made by virtue of § 10-5-20 shall be sworn to before any person authorized to administer oaths and shall be filed with the clerk of the court to which the writ shall be returnable, and if the name and address of plaintiff’s attorney appears on the writ, a copy of the disclosure shall be mailed to the attorney at that address. The party filing the disclosure shall be entitled, on tendering a copy of the disclosure and a fee of twenty-five cents ($.25) to the clerk, to have the copy certified by the clerk with whom the original is filed, and a certificate indorsed on the copy of the fact and date of filing.

History of Section. C.P.A. 1905, § 577; G.L. 1909, ch. 301, § 11; G.L. 1923, ch. 351, § 11; G.L. 1938, ch. 547, § 25; G.L. 1956, § 10-5-21 ; P.L. 1968, ch. 62, § 1.

10-5-22. Defendant’s bond on corporate stock or trust estate.

Whenever a writ shall command the attachment of the shares of the defendant in any corporation, or of his or her personal estate in the hands or possession of any person, co-partnership or corporation, as trustee, the defendant may, at any time after the service of the writ upon the trustee, and before final judgment or decree, deliver to the officer who served the writ a bond, in the penal sum of the amount of damages stated in the writ, signed by the defendant or someone in his or her behalf, with surety or sureties to the satisfaction of the officer, with a condition in the surety that the surety shall be null and void if the final judgment or decree, in the action or cause in which the writ was served, shall be immediately paid and satisfied after the rendition of the final judgment or decree.

History of Section. C.P.A. 1905, § 547; G.L. 1909, ch. 300, § 25; G.L. 1923, ch. 350, § 25; G.L. 1938, ch. 547, § 14; G.L. 1956, § 10-5-22 .

NOTES TO DECISIONS

Bond.

Bond to release attachment by trustee process should run to the officer who served the writ. Santee River Co. v. Webster, 23 R.I. 599 , 51 A. 218, 1902 R.I. LEXIS 156 (1902).

Release of Defendants.

Surety on bond to secure release of property attached by garnishment was not released by reason of a change dropping some of the parties defendant. Bedard v. Mahoney, 30 R.I. 469 , 76 A. 113, 1910 R.I. LEXIS 41 (1910).

10-5-23. Release of stock or trust estate on acceptance of bond by officer.

Upon the acceptance of the bond as described in § 10-5-22 by the officer, he or she shall immediately deliver to the person, co-partnership or corporation named as trustee in the writ, a certified copy of the writ, with an indorsement on the copy, signed by the officer, setting forth in the indorsement that he or she has accepted the bond and released the shares or personal estate in the hands or possession of the trustee from the attachment; and thereupon the shares or personal estate in the hands or possession of the trustee shall become discharged from the attachment.

History of Section. C.P.A. 1905, § 548; G.L. 1909, ch. 300, § 26; G.L. 1923, ch. 350, § 26; G.L. 1938, ch. 547, § 15; G.L. 1956, § 10-5-23 ; P.L. 1997, ch. 326, § 95.

10-5-24. Release of stock or trust estate by plaintiff.

In case the writ shall have been returned to the court to which it is made returnable, and duly entered in the court, or in case the officer who served the writ shall, from any cause, be unable to accept the bond and release the shares or personal estate in the hands or possession of the trustee from the attachment, then the bond given to release the attachment shall be delivered to the plaintiff, or his or her attorney named on the writ, the bond running to the plaintiff, and with surety to the satisfaction of the plaintiff or the plaintiff’s attorney; and upon the acceptance of the bond by the plaintiff or the plaintiff’s attorney, the plaintiff or his or her attorney shall upon receipt of the bond give to the defendant a certificate, signed by the plaintiff or his or her attorney, that he or she has accepted the bond and released the shares or personal estate from attachment. In the case of the refusal of the plaintiff or his or her attorney to act upon the bond or to receive a proper bond and give such certification, the defendant may petition the court to which the writ is returnable, or if appellate proceedings have been taken may petition the court to which the proceedings have been taken, to accept a bond running to the plaintiff and satisfactory to the court and release the shares or personal estate from attachment.

History of Section. C.P.A. 1905, § 549; G.L. 1909, ch. 300, § 27; G.L. 1923, ch. 350, § 27; G.L. 1938, ch. 547, § 16; G.L. 1956, § 10-5-24 ; P.L. 1961, ch. 145, § 1; P.L. 1997, ch. 326, §§ 95, 170.

NOTES TO DECISIONS

Release of Attachment.

Clerk of a district court to which writ was returnable had power to require plaintiff to accept a bond in lieu of attachment after the case had been certified to the common pleas division for jury trial but before final judgment was rendered. Stone v. People's Sav. Bank, 20 R.I. 427 , 39 A. 753, 1898 R.I. LEXIS 73 (1898).

Clerk of common pleas division was mandated to accept bond and discharge attachment where surety offered was authorized to do business in this state and was entitled to credit. Santee River Co. v. Webster, 23 R.I. 599 , 51 A. 218, 1902 R.I. LEXIS 156 (1902).

Where writ ordering attachment was issued by district court and was returnable to such court, superior court, to which case was certified on appeal, was not authorized to compel plaintiff to accept bond and release attachment. McOsker v. Superior Court, 84 R.I. 201 , 122 A.2d 174, 1956 R.I. LEXIS 43 (1956).

10-5-25. Liens and claims on stock preserved.

Nothing contained in this chapter shall be so construed as to destroy or impair any lien or claim of any person or body corporate upon any stock or shares attached under the provisions of this chapter.

History of Section. C.P.A. 1905, § 557; G.L. 1909, ch. 300, § 39; G.L. 1923, ch. 350, § 39; G.L. 1938, ch. 547, § 22; G.L. 1956, § 10-5-25 ; P.L. 1997, ch. 326, § 95.

10-5-26. Attachment of mortgaged personal property.

Personal estate, when mortgaged and in the possession of the mortgagor, and while the estate is redeemable at law or in equity, may be attached on writ of attachment against the mortgagor, in the same manner as his or her other personal estate.

History of Section. C.P.A. 1905, § 570; G.L. 1909, ch. 301, § 4; G.L. 1923, ch. 351, § 4; G.L. 1938, ch. 549, § 3; G.L. 1956, § 10-5-26 .

NOTES TO DECISIONS

Bill of Sale.

Personal property remaining in the possession of a debtor who had purportedly transferred the property to one of his creditors under a bill of sale which was in effect a mortgage was subject to attachment by another creditor. Harris v. Chaffee, 17 R.I. 193 , 21 A. 104, 1890 R.I. LEXIS 77 (1890).

Right of Redemption.

Mortgaged property could be attached while there was a right of redemption in equity though not at law. Arnold v. Chapman, 13 R.I. 586 , 1882 R.I. LEXIS 46 (1882).

Ships.

A ship which has been mortgaged and the mortgage recorded under the appropriate federal statutes could not be attached under P.S. 1882, ch. 208, § 4. Howe v. Tefft, 15 R.I. 477 , 8 A. 707, 1887 R.I. LEXIS 24 (1887).

10-5-27. Sale of mortgaged property.

When attached, the mortgaged estate may be sold upon the application of the mortgagee or of either of the parties to the suit, in the manner provided for the sale of perishable goods and chattels when attached.

History of Section. C.P.A. 1905, § 571; G.L. 1909, ch. 301, § 5; G.L. 1923, ch. 351, § 5; G.L. 1938, ch. 549, § 4; G.L. 1956, § 10-5-27 .

NOTES TO DECISIONS

Conversion.

Mortgagee taking property from attaching officer was guilty of conversion and should instead have applied for an order of sale. Arnold v. Maroney, 17 R.I. 579 , 23 A. 1101, 1892 R.I. LEXIS 37 (1892).

Mortgage.

Sale on execution of mortgaged goods must be free of and not subject to the mortgage. Zimmerman v. Andrews, 51 R.I. 204 , 153 A. 307, 1931 R.I. LEXIS 12 (1931).

10-5-28. Proceeds of sale of mortgaged property.

Upon any sale as provided in § 10-5-27 , the attaching officer shall first apply so much of the proceeds of the sale as may be necessary to pay the amount for which the property was mortgaged, with such deduction for interest for the anticipated payment, or allowance for damages for the anticipated payment, as may be allowed by the justice directing the sale; and the officer shall pay only the balance into the registry of the court for the purposes of the attachment.

History of Section. C.P.A. 1905, § 572; G.L. 1909, ch. 301, § 6; G.L. 1923, ch. 351, § 6; G.L. 1938, ch. 549, § 5; G.L. 1956, § 10-5-28 ; P.L. 1997, ch. 326, § 95.

NOTES TO DECISIONS

Expenses of Sale.

Mortgagee was entitled to payment before expenses of the sale. McKenna Bros. v. Brown, 29 R.I. 339 , 71 A. 450, 1908 R.I. LEXIS 65 (1908).

Issues Determined by Court.

This section did not give the trial court authority to determine the validity of a contested mortgage. Groton Mfg. Co. v. Rhode Island Dairy Co., 11 R.I. 129 , 1875 R.I. LEXIS 9 (1875).

Where officer paid proceeds into registry of district court, court had jurisdiction to determine disposition of the proceeds and mandamus would lie to compel such determination. Sobiloff Bros. v. Hebert, 45 R.I. 77 , 120 A. 60, 1923 R.I. LEXIS 22 (1923).

Payment of Proceeds.

Sale of mortgaged goods subject to mortgage would ignore statutory provisions for payment of proceeds to mortgagee. Zimmerman v. Andrews, 51 R.I. 204 , 153 A. 307, 1931 R.I. LEXIS 12 (1931).

Unrecorded Mortgage.

Where mortgagor retained possession and the mortgage was not recorded, subsequent attachment took priority over the mortgage. Harris v. Chaffee, 17 R.I. 193 , 21 A. 104, 1890 R.I. LEXIS 77 (1890).

10-5-29. Redemption of mortgage by plaintiff in attachment.

The plaintiff in any attachment under § 10-5-26 may redeem the mortgaged estate in the same manner as the mortgagor might have done; and in case of redemption by the plaintiff, the plaintiff shall have the same lien on the property for the amount paid by him or her, with interest, as the mortgagee had.

History of Section. C.P.A. 1905, § 573; G.L. 1909, ch. 301, § 7; G.L. 1923, ch. 351, § 7; G.L. 1938, ch. 549, § 6; G.L. 1956, § 10-5-29 ; P.L. 1997, ch. 326, § 95.

Cross References.

Redemption of mortgaged property, § 34-26-1 et seq.

Collateral References.

Mortgagor’s statutory right to redeem or his right to possession after foreclosure as subject of levy and seizure. 42 A.L.R. 884, 57 A.L.R. 1128.

10-5-30. Defeat of attachment by failure to sell or redeem from mortgage.

If the mortgage is not redeemed by the plaintiff, or the mortgaged property sold as provided in § 10-5-27 , before the time of redemption expires, the attachment shall become void.

History of Section. C.P.A. 1905, § 574; G.L. 1909, ch. 301, § 8; G.L. 1923, ch. 351, § 8; G.L. 1938, ch. 549, § 7; G.L. 1956, § 10-5-30 ; P.L. 1997, ch. 326, § 95.

10-5-31. Defendant in one county and property in another — Summons of defendants from different counties.

If the property attached is in one county and the defendant is, or have his or her usual place of abode, in another county, the attachment may be made by any proper officer of the county where the property is situated, and the defendant may be summoned where he or she may be found or have his or her usual place of abode by the officer making the attachment or by any like officer of the county where the defendant may be found or may have his or her usual place of abode; provided, that the officer making the attachment shall not be required to send a copy of the writ by mail to the address of the defendant in case the summons shall be served as by law provided. If, in any writ, citation, or other process issued from the supreme or superior court, the defendants or respondents named in the writ, citation, or other process reside in different counties, the proper officer making service of the writ, citation or other process in the county where the writ, citation, or other process is returnable may summon the defendants or respondents residing in other counties.

History of Section. C.P.A. 1905, § 546; G.L. 1909, ch. 300, § 24; G.L. 1923, ch. 350, § 24; G.L. 1938, ch. 547, § 13; G.L. 1956, § 10-5-31 .

NOTES TO DECISIONS

Valid Attachment.

Attachment was valid where officer attached real estate located in one county and served copy of writ personally on defendant who lived in another county. Remington v. Benoit, 19 R.I. 698 , 36 A. 718, 1897 R.I. LEXIS 8 (1897).

10-5-32. Surety on defendant’s bond — Lien on surety’s real estate.

Whenever a member of the division of sheriffs shall take a bond for the release of goods and chattels attached on an original writ or a writ of mesne process, in which the ad damnum shall be more than one thousand dollars ($1,000), the bond shall be in the penal sum of the amount of damages stated in the writ, with some surety company authorized to do business in this state as surety, unless the defendant can furnish as surety a resident of the state satisfactory to the officer taking the bond, who is the owner of real estate in this state having a value over all incumbrances thereon, equal to the penal sum of the amount of damages stated in the writ. In case the owner of such real estate is accepted as surety, the bond shall contain a description of the real estate, so that the real estate may be readily identified in the records of land evidence of the city or town in which it is situated, and also a statement by the surety of the value of the real estate free from all incumbrances, and the description and the valuation shall be sworn to by the surety, and his or her affidavit shall be made a part of the bond. Before the goods and chattels are released, an attested copy of the bond shall be filed with the recorder of deeds, but if there is no recorder of deeds, then with a city or town clerk of the city or town in which the real estate is situated, and the copy shall be recorded in the same manner as copies of writs of attachment are recorded under the provisions of this chapter, and the bond shall be a lien upon the real estate described in the bond until the action in which the attachment was made is disposed of, or the bond is cancelled by the plaintiff, or by his or her attorney of record, or by order of a court of competent jurisdiction. The officer taking the bond shall be allowed a fee of one dollar and fifty cents ($1.50) for making a copy of the bond, and the fee for the copy, together with the fee for recording, shall be a part of the costs in the case. Any lien created by the provisions of this section may be established, foreclosed, and enforced by a civil action, which action may be heard, tried, and determined according to the usages in chancery and the principles of equity.

History of Section. G.L. 1923, ch. 351, § 29; P.L. 1927, ch. 1009, § 1; P.L. 1929, ch. 1430, § 1; G.L. 1938, ch. 547, § 23; G.L. 1956, § 10-5-32 ; P.L. 2012, ch. 324, § 23.

NOTES TO DECISIONS

Enforcement of Lien.

Lien upon realty of the surety was enforceable by bill in equity. Andrews v. Peacock, 50 R.I. 260 , 146 A. 771, 1929 R.I. LEXIS 58 (1929).

10-5-33. Inventory included in return of writ.

If the defendant in the writ shall not, within the forty-eight (48) hours as provided in § 10-5-13 , either give a bond as provided in § 10-5-13 or a bond for the value of the goods and chattels attached, in the manner by law provided, the officer shall make an inventory of the goods and chattels by him or her attached upon the writ, and return the inventory as a part of his or her doings in his or her return upon the writ.

History of Section. C.P.A. 1905, § 541; G.L. 1909, ch. 300, § 19; G.L. 1923, ch. 350, § 19; G.L. 1938, ch. 547, § 8; G.L. 1956, § 10-5-33 ; P.L. 1997, ch. 326, § 95.

Cross References.

Fees for taking inventory, § 9-29-9 .

10-5-34. Subsequent attachments of other property.

After an attachment of property, subsequent attachments of other property of the defendant may be made by any proper officer, at any time before the defendant is served with the writ; and, if need be, the plaintiff may amend his or her writ for the purpose of having subsequent attachment made.

History of Section. C.P.A. 1905, § 550; G.L. 1909, ch. 300, § 28; G.L. 1923, ch. 350, § 28; G.L. 1938, ch. 547, § 17; G.L. 1956, § 10-5-34 .

10-5-35. Application to sell perishable property or property expensive to keep.

Whenever any officer shall attach, on any writ, any live animals or any goods or chattels which are liable to perish or waste, or to be greatly reduced in value by keeping, or which cannot be kept without great and disproportionate expense, any justice of the court out of which the writ shall have been issued may, on the written application of any person interested in the property, cause the defendant and the attaching creditor, or complainant, their attorneys or agents, to be notified to appear at a time and place appointed for that purpose, to show cause why the animals, goods, or chattels should not be sold.

History of Section. C.P.A. 1905, § 568; G.L. 1909, ch. 301, § 2; G.L. 1923, ch. 351, § 2; G.L. 1938, ch. 549, § 1; G.L. 1956, § 10-5-35 .

NOTES TO DECISIONS

Death of Defendant.

An order for the sale of personal property was dissolved or annulled by the death of the defendant owner prior to the sale. Dwyer v. Benedict, 12 R.I. 459 , 1879 R.I. LEXIS 57 (1879).

Depreciation in Value.

The trial court could within its sound discretion order the sale of the defendant’s attached automobile, which was depreciating in value, and have the sale money paid into court pending the proceedings. Moore v. Budlong, 49 R.I. 392 , 143 A. 602, 1928 R.I. LEXIS 74 (1928).

Form of Application.

An application under this section need not be sworn to. Morrissey v. Piette, 96 R.I. 151 , 190 A.2d 1, 1963 R.I. LEXIS 63 (1963).

Interested Person.

An attaching creditor is an interested person within the meaning of this section. Morrissey v. Piette, 96 R.I. 151 , 190 A.2d 1, 1963 R.I. LEXIS 63 (1963).

It was not necessary that person applying for sale of property show that he was an attaching creditor, since court could take judicial notice of such person’s pending action in assumpsit. Morrissey v. Piette, 96 R.I. 151 , 190 A.2d 1, 1963 R.I. LEXIS 63 (1963).

Jurisdiction.

Where action was brought in the district court the power conferred by this section remained exclusively with the district court so long as the action was pending therein, but where a timely appeal was taken from the decision of the district court jurisdiction to entertain a subsequent application of the attached property is vested in the superior court. Morrissey v. Piette, 96 R.I. 151 , 190 A.2d 1, 1963 R.I. LEXIS 63 (1963).

Perishable Goods.

The condition of bond for attached grocery stock was not fulfilled by a tender of part of the goods attached and of goods purchased to replace goods which had perished as the defendant could have applied for permission to sell such perishable goods. Pearce v. Maguire, 17 R.I. 61 , 20 A. 98, 1890 R.I. LEXIS 39 (1890).

Res Judicata.

Although district court had denied a motion for sale of property while action was pending before it, such action was not res judicata as to subsequent application to superior court where case was pending on appeal. Morrissey v. Piette, 96 R.I. 151 , 190 A.2d 1, 1963 R.I. LEXIS 63 (1963).

Collateral References.

Contribution and effect of provision for execution sale on short notice, or sale in advance of judgment under writ of attachment, where property involved is subject to decay or depreciation. 3 A.L.R.3d 593.

10-5-36. Sale of perishable property or property expensive to keep.

If, after reasonable notice, no person appears, or no sufficient cause to the contrary is shown, the justice may direct the officer to sell the perishable property in such manner, on such notice, and at such time, as the justice may prescribe; and the officer shall immediately pay the proceeds of the sales, after deducting from the sales the necessary charges of the sales, into the registry of the court, there to be held as security to satisfy the judgment or decree which the attaching creditor or complainant may recover.

History of Section. C.P.A. 1905, § 569; G.L. 1909, ch. 301, § 3; G.L. 1923, ch. 351, § 3; G.L. 1938, ch. 549, § 2; G.L. 1956, § 10-5-36 ; P.L. 1997, ch. 326, § 95.

NOTES TO DECISIONS

Attachment of Funds Paid Into Court.

Clerk of the court could not be charged as garnishee of the balance of proceeds of sale of attached property, paid into registry of the court, and remaining after execution in first attachment was satisfied. Allen v. Gerard, 21 R.I. 467 , 44 A. 592, 1899 R.I. LEXIS 98 (1899).

Bankruptcy.

Lien of attaching creditor against proceeds of sale was dissolved by bankruptcy petition within four months of attachment. Schmilovitz v. Bernstein, 22 R.I. 330 , 47 A. 884, 1901 R.I. LEXIS 7 (1901).

Custody of Funds.

The court was custodian pendente lite of the proceeds of sale of personalty attached, instead of the sheriff, and the ownership of such proceeds remained in the debtor subject to the attachment lien. Schmilovitz v. Bernstein, 22 R.I. 330 , 47 A. 884, 1901 R.I. LEXIS 7 (1901).

Payment of Disputed Liens.

Court did not have summary jurisdiction to direct payment of amount of disputed liens out of proceeds from sale of attached property. Groton Mfg. Co. v. Rhode Island Dairy Co., 11 R.I. 129 , 1875 R.I. LEXIS 9 (1875).

10-5-37, 10-5-38. Repealed.

History of Section. C.P.A. 1905, §§ 545, 551; G.L. 1909, ch. 300, §§ 23, 29; G.L. 1923, ch. 350, §§ 23, 29; G.L. 1938, ch. 547, §§ 12, 18; G.L. 1956, §§ 10-5-37 , 10-5-38; Repealed by P.L. 1965, ch. 55, § 51, effective January 10, 1966.

10-5-39. Charges for attested copies restricted to charge for one person.

The officer to whom a writ of attachment shall be directed, commanding the attachment of different kinds of property, shall be entitled to charge for only one attested copy of the writ for any one person with whom the copy is required to be left.

History of Section. C.P.A. 1905, § 554; G.L. 1909, ch. 300, § 36; G.L. 1923, ch. 350, § 36; G.L. 1938, ch. 547, § 19; G.L. 1956, § 10-5-39 .

10-5-40. Attested copies on demand — Fee.

The officer shall give to any defendant, his or her agent or attorney, or any other person interested in any action in which a writ of attachment shall have been served immediately upon his or her request, an attested copy of the writ, with his or her doings thereon, upon being tendered therefor a fee of twenty cents ($.20) for every page of two hundred (200) words of the copy of the writ.

History of Section. C.P.A. 1905, § 555; G.L. 1909, ch. 300, § 37; G.L. 1923, ch. 350, § 37; G.L. 1938, ch. 547, § 20; G.L. 1956, § 10-5-40 .

10-5-41. Time of attachment shown in return.

The officer who shall make any attachment shall, in his or her return, set forth the time of the day when the attachment was made, to the end that the priority of attachment may be known.

History of Section. C.P.A. 1905, § 556; G.L. 1909, ch. 300, § 38; G.L. 1923, ch. 350, § 38; G.L. 1938, ch. 547, § 21; G.L. 1956, § 10-5-41 .

10-5-42. Appointment of receiver — Effect on attachment.

An attachment of property, on any original writ or writ of mesne process hereafter issued, shall be dissolved by the appointment by the superior court of a permanent receiver to take possession of the property to be attached, if the complaint praying for the appointment of the receiver is filed in the superior court within four (4) months after the attachment was made, unless the court, in its discretion, and on due notice, shall order that the right under the attachment shall be preserved by the receiver for the benefit of the estate in receivership. In such case, the court may authorize the receiver to prosecute the action upon which the attachment was made for the benefit of the estate in receivership and may make all such other orders as may be necessary to enable the receiver to recover for the benefit of the estate in receivership the interest of the defendant in the attached property, as of the time of the attachment, and the right and lien of the creditor under the attachment.

History of Section. G.L. 1923, ch. 351, § 30; P.L. 1932, ch. 1959, § 1; G.L. 1938, ch. 551, § 1; G.L. 1956, § 10-5-42 .

Collateral References.

Contempt by levy on property pending receivership. 39 A.L.R. 22, 48 A.L.R. 241.

10-5-43. Prerequisites to dismissal of receivership.

If an attachment has been dissolved in the manner provided in § 10-5-42 , the proceedings for the appointment of a receiver shall not thereafter be dismissed and the receiver discharged, until all the assets which have come into his or her hands as receiver have been fully distributed or the claim upon which the attachment was made has been fully paid and discharged, unless the debtor, before the dismissal, deposits with the clerk of the court to which the original writ or writ of mesne process was returnable, such amount of money as the court before which the receivership proceedings are pending, after notice to the attaching creditor and a hearing, finds reasonable for the protection of his or her claim in the action in which the attachment was made. The clerk shall pay, from the amount so deposited, to the plaintiff, if final judgment or decree is in his or her favor, so much of the money as may be required to satisfy his or her execution and shall pay the balance, if any, to the defendant, and if judgment or decree in the action or cause is for defendant, in such event upon presentation of execution in his or her favor, the amount so deposited with actual accrued interest, if any, shall be immediately paid to the defendant, but such amount may at any time be paid by the clerk as the parties may by their agreement stipulate or as the court upon motion of any party in interest may direct.

History of Section. G.L. 1923, ch. 351, § 31; P.L. 1932, ch. 1959, § 1; G.L. 1938, ch. 551, § 2; G.L. 1956, § 10-5-43 .

10-5-44. Dissolution of attachment of real property for want of action.

The lien of any attachment of real property filed on or before May 5, 1955, in which a decision has not been entered, shall be dissolved whenever the cause shall hereafter remain without action for a period of six (6) years, as shown by the court docket. The lien of any attachment of real property filed after May 5, 1955, in which a decision shall not have been entered, shall be dissolved whenever the cause shall remain without action for a period of six (6) years, as shown by the court docket. A certificate of the clerk of the court in which a cause is pending, to the effect that the cause has remained without action for a period of six (6) years, shall be entitled to be recorded, upon payment of the fee for the recording, in the records of land evidence wherever any such attachment may have been filed.

History of Section. G.L. 1923, ch. 551, § 3; P.L. 1955, ch. 3579, § 1; G.L. 1956, § 10-5-44 ; P.L. 1997, ch. 326, § 95.

10-5-45. Dissolution of attachment for failure to file complaint.

An attachment of property on any writ hereafter issued shall be dissolved if the complaint in the action is not filed with the court either before or within thirty (30) days after the attachment is made. A certificate signed by the clerk of the court to which the writ is returnable which states that according to the records of the court the complaint has not been filed shall be sufficient authority to dissolve the attachment and to release any funds or properties attached pursuant to the writ and shall further serve to release the garnishee from any liability that might exist by virtue of the issuance of the writ.

History of Section. R.P.L. 1957, ch. 163, § 1; P.L. 1966, ch. 1, § 13.

10-5-46. Dissolution of attachment of real estate after 20 years.

In addition to the remedies provided by §§ 10-5-44 , 10-5-45 , and 9-25-23 any attachment levied against real estate, heretofore or hereafter of record, shall be dissolved, and no longer be a lien upon the real estate described or referred to in the attachment, after the expiration of a period of twenty (20) years from the date of the recording of the attachment.

History of Section. P.L. 1989, ch. 225, § 1; P.L. 1992, ch. 199, § 1; P.L. 1997, ch. 326, § 28.

Chapter 6 Contribution Among Joint Tortfeasors

10-6-1. Short title.

This chapter may be cited as the “Uniform Contribution Among Tortfeasors Act”.

History of Section. P.L. 1940, ch. 940, § 9; G.L. 1956, § 10-6-1 .

Law Reviews.

For note and comment, Joint Tortfeasors, Full Compensation, and the 1,800 Degree Crucible: Rekindling Rhode Island’s Uniform Contribution Among Tortfeasors Act in the Aftermath of the Station Nightclub Fire, see 12 Roger Williams U. L. Rev. 386 (2007).

NOTES TO DECISIONS

Applicability.

This chapter does not give a joint tortfeasor with the United States a right of contribution against the United States where the United States was immune from tort liability to the injured party by reason of the fact that such party was an employee of the United States. Newport Air Park, Inc. v. United States, 419 F.2d 342, 1969 U.S. App. LEXIS 9807 (1st Cir. 1969).

Summary dismissal of the third-party professional negligence claims against an excavation company was affirmed because the parties were commercial entities, and thus, the economic loss doctrine barred the claims; because the economic loss doctrine barred any tortious claim against the excavation company for purely economic damages, then the derivative claims under the Uniform Contribution Among Tortfeasors Act, R.I. Gen. Laws tit. 10, ch. 6, failed as well. Franklin Grove Corp. v. Drexel, 936 A.2d 1272, 2007 R.I. LEXIS 132 (R.I. 2007).

There is no cause of action of statutory indemnity under this chapter. Wilson v. Krasnoff, 560 A.2d 335, 1989 R.I. LEXIS 119 (R.I. 1989).

Collateral References.

Effect of uniform law. 34 A.L.R.2d 1107.

Release of one joint tortfeasor as discharging liability of others under uniform contribution among Tortfeasors Act and other statutes expressly governing effect of release. 6 A.L.R.5th 883.

10-6-2. “Joint tortfeasors” defined.

For the purposes of this chapter, the term “joint tortfeasors” means two (2) or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them; provided, however, that a master and servant or principal and agent shall be considered a single tortfeasor.

History of Section. P.L. 1940, ch. 940, § 1; G.L. 1956, § 10-6-2 ; P.L. 1970, ch. 313, § 1.

Law Reviews.

Caselaw Survey Section: Civil Procedure/Tort Law, see 4 R.W.U.L. Rev. 609 (1999).

NOTES TO DECISIONS

Assault and Battery.

There was no provision that the Joint Tortfeasor Act applied only to joint tortfeasors charged with negligence and not to assault and battery. Sousa v. Casey, 111 R.I. 623 , 306 A.2d 186, 1973 R.I. LEXIS 1256 (1973).

Co-Beneficiary Not Joint Tortfeasor.

Where the insurer of the injured party had no right of subrogation against one of two tortfeasors by reason of his being a co-beneficiary with the injured party, the two were not joint tortfeasors within the meaning of this section. New Amsterdam Casualty Co. v. Homans-Kohler, Inc., 310 F. Supp. 374, 1970 U.S. Dist. LEXIS 12490 (D.R.I.), aff'd, 435 F.2d 1232, 1970 U.S. App. LEXIS 5717 (1st Cir. 1970).

Cross-Claim Rights Protected.

In an action against joint tortfeasors for fire loss to the building by the owner-contractor’s insurers as subrogee, the fact that the insurer had also insured two of the joint tortfeasors did not render the statute inapplicable as amongst the joint tortfeasors but to avoid the circuity of action the court did not allow the insurer to recover against uninsured joint tortfeasors to the extent that they could in turn compel contribution from the insured joint tortfeasors and by allowing the set-off, the cross-claim rights of uninsured joint tortfeasors would be protected. New Amsterdam Casualty Co. v. Holmes, 435 F.2d 1232, 1970 U.S. App. LEXIS 5717 (1st Cir. 1970).

Husband and Wife.

The immunity of one spouse from suit by the other is merely procedural and the term “liable in tort,” as used in this section, means any person or persons who have negligently contributed to another’s injury, including a husband who has contributed to his wife’s injury. Zarrella v. Miller, 100 R.I. 545 , 217 A.2d 673, 1966 R.I. LEXIS 475 (1966).

Interspousal immunity from tort actions does not bar action against spouse of injured party for contribution under this chapter. Digby v. Digby, 120 R.I. 299 , 388 A.2d 1, 1978 R.I. LEXIS 679 (1978).

One spouse’s immunity in a negligence action does not extend to his employer, and such immunity is not a bar to an action by a third party against an injured party’s spouse for contribution under this section. Asplin v. Amica Mut. Ins. Co., 121 R.I. 51 , 394 A.2d 1353, 1978 R.I. LEXIS 755 (1978).

Liable in Tort.

The phrase “liable in tort” as demanding present liability to whoever might be the particular plaintiff is inconsistent with other language of the statute. New Amsterdam Casualty Co. v. Holmes, 435 F.2d 1232, 1970 U.S. App. LEXIS 5717 (1st Cir. 1970).

Master and Servant.

A master and servant were joint tortfeasors under this section, because, upon the occurrence of the tort, they became jointly or severally liable to the injured party. Smith v. Raparot, 101 R.I. 565 , 225 A.2d 666, 1967 R.I. LEXIS 800 (1967).

Parent’s release of a pediatric center from liability resulted in the release from liability of the nurses who were employed by the pediatric center because the pediatric center, as master, and nurses, as servants, were a single tortfeasor when the parent brought claims of negligence and loss of consortium against the pediatric center and the nurses who treated the parent’s daughter. Hall v. Hornby, 173 A.3d 868, 2017 R.I. LEXIS 124 (R.I. 2017).

Multiple Physicians.

Doctors who performed surgery on plaintiff and had the opportunity to guard against each other’s negligence are joint tortfeasors within the meaning of this chapter. Wilson v. Krasnoff, 560 A.2d 335, 1989 R.I. LEXIS 119 (R.I. 1989).

Municipality and Municipal Employee.

As joint tortfeasors, both the city and the police captain were jointly and severally liable for the compensatory damage award based on the plaintiff’s malicious prosecution, false arrest/imprisonment, and abuse of process claims. Graff v. Motta, 695 A.2d 486, 1997 R.I. LEXIS 194 (R.I. 1997).

Negligent Boat Repair.

Boat owner and maritime repair shop were joint tortfeasors under this section, where the shop’s negligent work, though directly responsible for subsequent injuries, was a reasonably foreseeable consequence of the boat owner’s misrepresentations of the boat’s condition. North Atl. Fishing v. Geremia, 153 B.R. 607, 1993 U.S. Dist. LEXIS 5984 (D.R.I. 1993).

Same Injury.

The term “same injury” in this section refers to the initial injury occasioned by jointly negligent parties, and not something definable in terms of who brings the suit. New Amsterdam Casualty Co. v. Holmes, 435 F.2d 1232, 1970 U.S. App. LEXIS 5717 (1st Cir. 1970).

Third-Party Defendants.

Third-party defendants who owed no duty to plaintiffs are not jointly or severally liable with the original defendants and cannot be required to contribute. Testa v. Winquist, 451 F. Supp. 388, 1978 U.S. Dist. LEXIS 17768 (D.R.I. 1978).

Where plaintiffs have a cause of action against third-party defendants, but for reasons of limited jurisdiction that action cannot be maintained in a particular court, the third-party defendants are nonetheless joint tortfeasors, subject to the original defendants’ right of contribution. Testa v. Winquist, 451 F. Supp. 388, 1978 U.S. Dist. LEXIS 17768 (D.R.I. 1978).

In an action in which plaintiff property owners sought to hold various parties liable for failing to remediate groundwater contamination, defendant property owners and defendant pipeline owners were collaterally estopped from prevailing on their contribution claim against third-party defendant pipeline operator because a hearing officer had found that the pipeline operator was not liable for failing to remediate the contamination. Dunellen, LLC v. Power Test Realty Co. Ltd. P'ship, 2013 U.S. Dist. LEXIS 5780 (D.R.I. Jan. 11, 2013).

Tortfeasor and Negligent Physician.

Where both the defendant doctor and original tortfeasor were liable for any injury caused to plaintiff by the malpractice of defendant, the two were deemed joint tortfeasors under this section. Day v. J. Brendan Wynne, D.O., Inc., 702 F.2d 10, 1983 U.S. App. LEXIS 29841 (1st Cir. 1983).

The owner of a building in which the plaintiff fell, and the doctors who subsequently performed surgery on her at distinct times are not joint tortfeasors within the meaning of this chapter. Wilson v. Krasnoff, 560 A.2d 335, 1989 R.I. LEXIS 119 (R.I. 1989).

Vehicles in Collision.

Operators of two vehicles involved in collision were joint tortfeasors within this chapter as to passengers injured. Hackett v. Hyson, 72 R.I. 132 , 48 A.2d 353, 1946 R.I. LEXIS 49 (1946).

The driver of an automobile which struck a motorcycle and the manufacturer of the motorcycle were joint tortfeasors, irregardless of whether their conduct was “concurring” or “consecutive”. McInnis v. A.M.F., Inc., 765 F.2d 240, 1985 U.S. App. LEXIS 21244 (1st Cir. 1985).

Since it was absolutely clear that a valid and enforceable contract was formed at the time the parties to the releases exchanged promises, even though the injured persons tried to return the $100,000 settlement payment from the driver’s insurer, the lessor of the car which was involved in the accident was no longer exposed to liability. Davis v. Ford Motor Credit Co., 882 A.2d 557, 2005 R.I. LEXIS 159 (R.I. 2005).

While an administratrix of the decedent’s estate could have opted to pursue a direct action against the car lessor at any point prior to the execution of the settlement agreement with the driver and lessee under R.I. Gen. Laws § 31-34-4 , once having agreed to settle, that option was no longer available. Since vicarious liability under R.I. Gen. Laws § 31-33-6 did not convert a non-tortfeasor into a tortfeasor, summary judgment was properly granted in favor of the lessor. DelSanto v. Hyundai Motor Fin. Co., 882 A.2d 561, 2005 R.I. LEXIS 160 (R.I. 2005).

Worker’s Compensation.

A coemployee was not a joint tortfeasor against whom contribution could be sought, because the plaintiff lacked a right of action against her pursuant to § 28-29-20 (worker’s compensation exclusivity). Boucher v. McGovern, 639 A.2d 1369, 1994 R.I. LEXIS 118 (R.I. 1994).

— Employer as Joint Tortfeasor.

In an action against a third party defendant for death alleged to have been caused by negligence of such third party in an accident suffered by the decedent and arising out of and in the course of his employment, the employer is not a joint tortfeasor with such third party within the meaning of this section. Rowe v. John C. Motter Printing Press Co., 273 F. Supp. 363, 1967 U.S. Dist. LEXIS 8189 (D.R.I. 1967).

The General Assembly did not intend, in its 1970 amendment of this section, to extend sovereign immunity to government employees; the intent of the amendment was not to extend to the tortfeasor any special immunity enjoyed by the master or principal. Pridemore v. Napolitano, 689 A.2d 1053, 1997 R.I. LEXIS 64 (R.I. 1997).

Collateral References.

Joint and several liability of physicians whose independent negligence in treatment of patient causes indivisible injury. 9 A.L.R.5th 746.

Modern status of rule imputing motor vehicle driver’s negligence to passenger on joint venture theory. 3 A.L.R.5th 1.

10-6-3. Right of contribution declared.

Except as otherwise provided in § 10-6-7 , the right of contribution exists among joint tortfeasors; provided however, that when there is a disproportion of fault among joint tortfeasors, the relative degree of fault of the joint tortfeasors shall be considered in determining their pro rata shares.

History of Section. P.L. 1940, ch. 940, § 2; G.L. 1956, § 10-6-3 ; P.L. 1977, ch. 197, § 1; P.L. 2021, ch. 410, § 1, effective July 14, 2021; P.L. 2021, ch. 411, § 1, effective July 14, 2021.

Compiler's Notes.

P.L. 2021, ch. 410, § 1, and P.L. 2021, ch. 411, § 1 enacted identical amendments to this section.

Applicability.

P.L. 2021, ch. 410, § 3, provides that the amendment to this section by that act takes effect upon passage [July 14, 2021] and applies to “all claims pending at the time of passage or asserted thereafter; provided, however, that this act shall not apply to, affect or impair releases executed before the passage date.”

P.L. 2021, ch. 411, § 3, provides that the amendment to this section by that act takes effect upon passage [July 14, 2021] and applies to “all claims pending at the time of passage or asserted thereafter; provided, however, that this act shall not apply to, affect or impair releases executed before the passage date.”

Cross References.

See note 6 under § 10-6-2 .

NOTES TO DECISIONS

In General.

This statutory right to contribution is inchoate until such time as another is adjudicated or admits being a joint tortfeasor and the one seeking contribution has paid more than his pro rata share. Markham v. Cross Transp., 119 R.I. 213 , 376 A.2d 1359, 1977 R.I. LEXIS 1899 (1977).

The right to contribution of a joint tortfeasor prior to the discharge of the common liability is inchoate and releasable. Nelson v. Ptaszek, 505 A.2d 1141, 1986 R.I. LEXIS 415 (R.I. 1986).

A plaintiff may recover 100% of his or her damages from a joint tortfeasor who has contributed to the injury in any degree. The joint tortfeasor may then seek contribution pursuant to statute either by a separate action or by impleading the fellow joint tortfeasor under third-party practice. Roberts-Robertson v. Lombardi, 598 A.2d 1380, 1991 R.I. LEXIS 161 (R.I. 1991).

Appeal.

Where defendants in a negligence case, who were found guilty, failed to make cross-claims for contribution against codefendants, who were exonerated, no right of action against codefendants existed under this section, and therefore defendants were not aggrieved parties for purposes of appeal within the meaning of § 9-24-1 as to the judgment in favor of codefendants. Markham v. Cross Transp., 119 R.I. 213 , 376 A.2d 1359, 1977 R.I. LEXIS 1899 (1977).

Co-Insured Tortfeasor.

In a subrogation action against two tortfeasors, there can be no right of contribution of one of such tortfeasors against one who was not liable to the subrogee by reason of his being a co-insured with the injured party. New Amsterdam Casualty Co. v. Homans-Kohler, Inc., 310 F. Supp. 374, 1970 U.S. Dist. LEXIS 12490 (D.R.I.), aff'd, 435 F.2d 1232, 1970 U.S. App. LEXIS 5717 (1st Cir. 1970).

Collateral Estoppel.

In an action in which plaintiff property owners sought to hold various parties liable for failing to remediate groundwater contamination, defendant property owners and defendant pipeline owners were collaterally estopped from prevailing on their contribution claim against third-party defendant pipeline operator because a hearing officer had found that the pipeline operator was not liable for failing to remediate the contamination. Dunellen, LLC v. Power Test Realty Co. Ltd. P'ship, 2013 U.S. Dist. LEXIS 5780 (D.R.I. Jan. 11, 2013).

Employer as Tortfeasor.

In an action against a third party defendant for death alleged to have been caused by negligence of such third party in an accident suffered by the decedent and arising out of and in the course of his employment, such third party has no right of contribution from the employer as a joint tortfeasor. Rowe v. John C. Motter Printing Press Co., 273 F. Supp. 363, 1967 U.S. Dist. LEXIS 8189 (D.R.I. 1967).

Intentional Torts.

There is no rule denying all contribution to a party who commits an intentional tort such as false arrest and imprisonment. Testa v. Winquist, 451 F. Supp. 388, 1978 U.S. Dist. LEXIS 17768 (D.R.I. 1978).

Liability of Joint Tortfeasors as Affected by Partial Settlement.

Where, in a medical malpractice action against a physician, hospital and manufacturer, the hospital settled with the plaintiffs prior to the conclusion of their case in chief, the trial justice erred by failing to instruct the jury that the liability of the other defendants was reduced by the settlement amount. Shepardson v. Consolidated Med. Equip., 714 A.2d 1181, 1998 R.I. LEXIS 232 (R.I. 1998).

Procedure.

Rule 14 of the Superior Court Rules of Civil Procedure is the mechanism by which defendants may implead joint tortfeasors to seek contribution. Cooney v. Molis, 640 A.2d 527, 1994 R.I. LEXIS 121 (R.I. 1994).

Right of Action by Injured Person.

There could be no contribution unless the injured person had a right of action in tort against both the party seeking contribution and the party from whom contribution was sought. Cacchillo v. H. Leach Machinery Co., 111 R.I. 593 , 305 A.2d 541, 1973 R.I. LEXIS 1251 (1973).

Interspousal immunity from tort actions does not bar action against spouse of injured party for contribution under this chapter. Digby v. Digby, 120 R.I. 299 , 388 A.2d 1, 1978 R.I. LEXIS 679 (1978).

Spouse as Tortfeasor.

Where a wife, as passenger in husband’s automobile, recovered from owner of another automobile for injuries received in a collision between the two automobiles, the husband was liable in action for contribution as a joint tortfeasor although he was immune from liability to his wife in any action by her as a result of the collision. Zarrella v. Miller, 100 R.I. 545 , 217 A.2d 673, 1966 R.I. LEXIS 475 (1966).

Collateral References.

Constitutionality, construction and effect of statute relating to exceptions to rule denying indemnity as between joint tortfeasors. 85 A.L.R. 1091, 122 A.L.R. 520, 141 A.L.R. 1207.

Contractor’s and contractee’s liability inter se in respect of damages paid to third persons for injuries. 38 A.L.R. 566.

Contribution between joint tortfeasors as affected by settlement with one or both by person injured or damaged. 8 A.L.R.2d 196.

Contribution between negligent tortfeasors at common law. 60 A.L.R.2d 1366.

Federal Tort Claims Act as authorizing contribution. 1 A.L.R.2d 222.

Measure of contribution between tortfeasors against whom judgments in different amounts have been rendered. 72 A.L.R.2d 1298.

Modern status of effect of state workmen’s compensation act on right of third-person tortfeasor to contribution or indemnity from employer of injured or killed workman. 100 A.L.R.3d 350.

Right of indemnitor of one joint tortfeasor to indemnity against other joint tortfeasor or indemnitor of the latter. 75 A.L.R. 1486, 171 A.L.R. 271.

Right of tortfeasor initially causing injury to recover indemnity or contribution from medical attendant aggravating injury or causing new injury in course of treatment. 72 A.L.R.4th 231.

Right of tortfeasor to contribution from joint tortfeasor who is spouse or otherwise in close familial relationship to injured party. 25 A.L.R.4th 1120.

Tort immunity of nongovernmental charities — modern status. 25 A.L.R.4th 517.

10-6-4. Payment as prerequisite — Limitation of actions.

Except as otherwise provided in § 10-6-7 , a joint tortfeasor is not entitled to a final money judgment for contribution until he or she has by payment discharged the common liability or has paid more than his or her pro rata share of the final money judgment. Actions for contribution shall be commenced not later than one year next after the first payment made by a joint tortfeasor which has discharged the common liability or is more than his or her pro rata share thereof.

History of Section. P.L. 1940, ch. 940, § 2; P.L. 1945, ch. 1635, § 1; G.L. 1956, § 10-6-4 ; P.L. 1960, ch. 61, § 1; P.L. 1965, ch. 55, § 52; P.L. 1997, ch. 326, § 29; P.L. 2021, ch. 410, § 1, effective July 14, 2021; P.L. 2021, ch. 411, § 1, effective July 14, 2021.

Compiler's Notes.

P.L. 2021, ch. 410, § 1, and P.L. 2021, ch. 411, § 1 enacted identical amendments to this section.

Applicability.

P.L. 2021, ch. 410, § 3, provides that the amendment to this section by that act takes effect upon passage [July 14, 2021] and applies to “all claims pending at the time of passage or asserted thereafter; provided, however, that this act shall not apply to, affect or impair releases executed before the passage date.”

P.L. 2021, ch. 411, § 3, provides that the amendment to this section by that act takes effect upon passage [July 14, 2021] and applies to “all claims pending at the time of passage or asserted thereafter; provided, however, that this act shall not apply to, affect or impair releases executed before the passage date.”

NOTES TO DECISIONS

Limitation of Action.

Where case is in federal court under diversity of citizenship, federal court is bound by state statute of limitations, and in construing this statute (as it read prior to amendment in 1960) the court held that the filing of third party complaint, under rule 14 of the federal rules of civil procedure, against the alleged joint tortfeasor, when summons was served on third party defendant, fulfills the function of notice and is deemed commencement of an action for contribution tolling the period of limitation, whether or not the state courts would permit the filing of an independent complaint against a joint tortfeasor alleged to be contingently liable for contribution. D'Onofrio Constr. Co. v. Recon Co., 255 F.2d 904, 1958 U.S. App. LEXIS 4274 (1st Cir. 1958).

Necessity of Payment.

A defendant in a personal injury damage case cannot maintain a counterclaim for contribution against one whose negligence he alleges contributed to the injury complained of before decision on his own liability, as his alleged cause of action does not mature until a judgment has been rendered against him and paid by him in an amount exceeding his proportionate share of liability. Scherza v. Home Indem. Co., 257 F. Supp. 97, 1966 U.S. Dist. LEXIS 6777 (D.R.I. 1966).

By interpleading a joint tortfeasor in the plaintiff’s action against him, a defendant may obtain a conditional judgment against such tortfeasor before payment of all or more than his pro rata share of any judgment obtained by plaintiff against such defendant. Marcus v. Marcoux, 41 F.R.D. 332, 1967 U.S. Dist. LEXIS 11714 (D.R.I. 1967).

Collateral References.

Preemption, by Railway Labor Act (45 USCS §§ 151 et seq.), of employee’s state-law action for infliction of emotional distress. 104 A.L.R. Fed. 548.

10-6-5. Separate settlement with injured person.

A joint tortfeasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by the settlement.

History of Section. P.L. 1940, ch. 940, § 2; G.L. 1956, § 10-6-5 .

NOTES TO DECISIONS

Purpose.

The trial court did not err when it excluded evidence of the alleged negligence of settling joint tortfeasors, since any theory of recovery that provided that any settlement amounts paid to the plaintiff by settling co-defendants which exceeded plaintiff’s total damages would result in a defaulting defendant not being liable to the plaintiff for any damages, or a theory that provided that if a settling co-defendant’s proportionate share of damages exceeded the settlement amount defaulting defendant’s proportionate share automatically would be reduced, would be in direct contravention of the purpose and policy of the contribution among tortfeasors statute. Calise v. Hidden Valley Condo. Ass'n, 773 A.2d 834, 2001 R.I. LEXIS 160 (R.I. 2001).

Effect of Separate Settlement That Extinguishes Potential Liability of Others.

A tortfeasor who settled with the injured person and obtained a release expressly extinguishing all potential liability of herself and her co-tortfeasor to the injured person was not barred from pursuing a contribution claim against the co-tortfeasor. Hawkins v. Gadoury, 713 A.2d 799, 1998 R.I. LEXIS 221 (R.I. 1998).

10-6-6. Effect of judgment against one tortfeasor.

The recovery of a judgment by the injured person against one joint tortfeasor does not discharge the other joint tortfeasors.

History of Section. P.L. 1940, ch. 940, § 3; G.L. 1956, § 10-6-6 .

NOTES TO DECISIONS

Satisfaction by One Tortfeasor.

Satisfaction of judgment by one tortfeasor does not discharge another tortfeasor. Hackett v. Hyson, 72 R.I. 132 , 48 A.2d 353, 1946 R.I. LEXIS 49 (1946).

Collateral References.

Agreement with one tortfeasor that any judgment that may be recovered will not be enforced against him, as affecting liability of co-tortfeasor. 160 A.L.R. 870.

Automobiles, joint liability for injury to third person or damage to his property due to concurring negligence of driver. 16 A.L.R. 465, 62 A.L.R. 1425.

Conflict of laws as to joint tortfeasors. 77 A.L.R. 1108.

Damages, effect of malice of one of two persons committing an assault on liability of both for punitive or exemplary damages. 16 A.L.R. 815, 123 A.L.R. 1126.

Failure to revive judgment against a number jointly, as to some of them, as making applicable the rule that a release of one is a release of all. 160 A.L.R. 678.

Gas company and plumbing company as jointly liable for injury or damage by escaping gas. 25 A.L.R. 280, 29 A.L.R. 1250, 47 A.L.R. 488, 90 A.L.R. 1082, 138 A.L.R. 870.

Highway, joint and several liability for injury by stepping or falling into opening in sidewalk while doors were open or cover off. 70 A.L.R. 1384.

Joint, or joint and several, liability of two or more persons guilty of similar acts of misconduct one of which alone caused the injury. 50 A.L.R. 361.

Judgments in action against one or more joint tortfeasors, provision in, to effect that it shall be without prejudice to plaintiff’s claim against another joint tortfeasor, or otherwise reserving rights against him, as affecting question of release of latter. 135 A.L.R. 1498.

Many acts of independent tortfeasors, each of which alone causes or tends to produce some damage, combining to create a joint liability. 9 A.L.R. 939, 35 A.L.R. 409, 91 A.L.R. 759.

Master as jointly liable with independent contractor where the former’s fault co-operated with that of the contractor. 30 A.L.R. 1508.

Payment of, or proceeding to collect, judgment against one tortfeasor as release of others. 27 A.L.R. 805, 65 A.L.R. 1087, 106 A.L.R. 1099.

Slander, joint liability for. 26 A.L.R.2d 1031.

Waters, joint and several liability for pollution of stream by mining operations. 39 A.L.R. 908.

10-6-7. Effect of release of one tortfeasor on liability of others.

  1. A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release.
  2. A release by the injured person of one joint tortfeasor relieves that tortfeasor from liability to make contribution to another joint tortfeasor.

History of Section. P.L. 1940, ch. 940, § 4; G.L. 1956, § 10-6-7 ; P.L. 2006, ch. 213, § 2; P.L. 2021, ch. 410, § 1, effective July 14, 2021; P.L. 2021, ch. 411, § 1, effective July 14, 2021.

Compiler's Notes.

P.L. 2021, ch. 410, § 1, and P.L. 2021, ch. 411, § 1 enacted identical amendments to this section.

Applicability.

P.L. 2006, ch. 213, § 3, provides that the amendment to this section by that act takes effect upon passage [July 3, 2006] and applies to all claims pending at the time of passage; provided, however, that the amendment does not apply to, affect or impair releases executed before that date of passage.

P.L. 2021, ch. 410, § 3, provides that the amendment to this section by that act takes effect upon passage [July 14, 2021] and applies to “all claims pending at the time of passage or asserted thereafter; provided, however, that this act shall not apply to, affect or impair releases executed before the passage date.”

P.L. 2021, ch. 411, § 3, provides that the amendment to this section by that act takes effect upon passage [July 14, 2021] and applies to “all claims pending at the time of passage or asserted thereafter; provided, however, that this act shall not apply to, affect or impair releases executed before the passage date.”

Law Reviews.

Caselaw Survey Section: Civil Procedure/Tort Law, see 4 R.W.U.L. Rev. 609 (1999).

Caselaw Survey Section: Remedies, see 4 R.W.U.L. Rev. 796 (1999).

Jillian Nobis, 2017 Survey, Cases: Tort Law: O’Connell v. Walmsley, 23 Roger Williams U. L. Rev. 739 (2018).

NOTES TO DECISIONS

In General.

This section is a verbatim enactment of section four of the Uniform Contribution Among Tortfeasors Act of 1939. Augustine v. Langlais, 121 R.I. 802 , 402 A.2d 1187, 1979 R.I. LEXIS 2055 (1979).

This section is free of ambiguity and must be literally applied. Augustine v. Langlais, 121 R.I. 802 , 402 A.2d 1187, 1979 R.I. LEXIS 2055 (1979).

Joint tortfeasors who were not liable for the total amount of the losses sustained by the failure of a credit union were not entitled to a reduction equal to or greater than the total amount of the contribution demanded by a release and settlement agreement, but only to a proportional share. Paradis v. Central Credit Union, 680 A.2d 70, 1996 R.I. LEXIS 216 (R.I. 1996).

Effect of Settlement on Liability.

In determining prejudgment interest where one tortfeasor has settled, the settlement amount must be deducted from the verdict before prejudgment interest is computed. In this way the nonsettling tortfeasor is not forced to pay interest on the amount of settlement. Margadonna v. Otis Elevator Co., 542 A.2d 232, 1988 R.I. LEXIS 56 (R.I. 1988), limited, Merrill v. Trenn, 706 A.2d 1305, 1998 R.I. LEXIS 50 (R.I. 1998).

Absent any alleged liability for monetary contribution, a tortfeasor could not maintain a third-party action against joint tortfeasor who was released by the plaintiff. Cooney v. Molis, 640 A.2d 527, 1994 R.I. LEXIS 121 (R.I. 1994).

A defendant is not precluded from bringing a proper appeal of a jury’s apportionment of liability by the fact that there was a settling joint tortfeasor. Cooney v. Molis, 640 A.2d 527, 1994 R.I. LEXIS 121 (R.I. 1994).

The presence of a settling tortfeasor in trial is not necessary to present a tortfeasor’s claim in an adversarial context, since the power of subpoena remains as a tool to present testimony by the settling tortfeasor to the jury. Cooney v. Molis, 640 A.2d 527, 1994 R.I. LEXIS 121 (R.I. 1994).

When parties settle without reference to any release given to an earlier settling tortfeasor, prejudgment interest is computed as follows: the later settling defendant is charged with interest on the entire amount of damages from the date on which the plaintiff’s cause of action arose to the date of payment by an earlier settling tortfeasor; the plaintiff’s total damages then are reduced by the amount of the earlier payment and the later settling defendant is charged with interest on the reduced balance of the remaining damages for the period from the date of the earlier payment to the date of entry of judgment; then, the interest charged for both periods is added together and the sum added to the remaining tortfeasor’s post-reduction damages liability. Merrill v. Trenn, 706 A.2d 1305, 1998 R.I. LEXIS 50 (R.I. 1998).

Where, in a medical malpractice action against a physician, hospital and manufacturer, the hospital settled with the plaintiffs prior to the conclusion of their case in chief, the trial justice erred by failing to instruct the jury that the liability of the other defendants was reduced by the settlement amount. Shepardson v. Consolidated Med. Equip., 714 A.2d 1181, 1998 R.I. LEXIS 232 (R.I. 1998).

Legislature intended the $250,000 minimum-damages provision of the Wrongful Death Act, R.I. Gen. Laws § 10-7-2 , to apply on a per-claim, rather than per-defendant, basis; rather than separately apply the statutory minimum to each defendant, the Wrongful Death Act meshes with R.I. Gen. Laws § 10-6-7 such that the Wrongful Death Act is subject to joint and several liability principles. O'Connell v. Walmsley, 156 A.3d 422, 2017 R.I. LEXIS 38 (R.I. 2017).

Examples.

Under this section, the release of the driver of an automobile from liability for injuries received by another from the negligent operation thereof did not release his employer. Smith v. Raparot, 101 R.I. 565 , 225 A.2d 666, 1967 R.I. LEXIS 800 (1967).

Release between original tortfeasor and plaintiff did not bar action plaintiff for subsequent malpractice of doctor in treating injury caused by original tortfeasor, even though the two were deemed joint tortfeasors and the latter’s liability for the initial accident would include the negligent treatment by the physician. Day v. J. Brendan Wynne, D.O., Inc., 702 F.2d 10, 1983 U.S. App. LEXIS 29841 (1st Cir. 1983).

Compensatory damages owed to a boat-buyer by a boat-seller had to be reduced by the amount of consideration that the boat-repairer paid the boat-buyer in exchange for release from suit. North Atl. Fishing v. Geremia, 153 B.R. 607, 1993 U.S. Dist. LEXIS 5984 (D.R.I. 1993).

Intent of Parties Rule.

Where a release of specifically identified parties also includes a boiler plate release of the world at large, unspecified parties are released only if the parties so intended. McInnis v. Harley-Davidson Motor Co., 625 F. Supp. 943, 1986 U.S. Dist. LEXIS 30497 (D.R.I. 1986).

Reduction of Claim.

Amount received in satisfaction of judgment from one tortfeasor will reduce the claim against the others. Hackett v. Hyson, 72 R.I. 132 , 48 A.2d 353, 1946 R.I. LEXIS 49 (1946).

The fundamental doctrine that an injured person is entitled to only one satisfaction of the tort, even though two or more parties contributed to the loss was not altered by the enactment of this section which proscribes double recovery by unequivocally mandating that a release “reduces the claim against the other tort feasors in the amount of the consideration paid for the release.” Augustine v. Langlais, 121 R.I. 802 , 402 A.2d 1187, 1979 R.I. LEXIS 2055 (1979).

This section clearly directs that the damage award must be reduced by either the amount of consideration paid for the release, or the proportion of reduction provided by the release, whichever is greater. Augustine v. Langlais, 121 R.I. 802 , 402 A.2d 1187, 1979 R.I. LEXIS 2055 (1979).

A release by an injured person of one joint tortfeasor reduces that person’s claim against the other tortfeasors in the greater of the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced. La Bounty v. La Bounty, 497 A.2d 302, 1985 R.I. LEXIS 578 (R.I. 1985).

— Furnishing of Alcoholic Beverages.

Under former § 3-11-1 , a tortfeasor and the party that furnished the tortfeasor with alcoholic beverages in violation of that statute were joint tortfeasors for purposes of this section and an award in an action against one had to be reduced by any settlement amount against the other. Lawrence v. Pokraka, 606 A.2d 987, 1992 R.I. LEXIS 91 (R.I. 1992).

Settlement With Credit Union.

A finding of proportional fault was not required before approving a settlement between the receiver of a credit union and the former directors and officers of the credit union under the Rhode Island Depositors Insurance Protection Act (Chapter 116 of Title 42). Rhode Island Depositors Economic Protection Corp. v. Brown, 661 A.2d 969, 1995 R.I. LEXIS 202 (R.I. 1995).

Collateral References.

Accord and satisfaction with one tortfeasor as affecting liability of others. 104 A.L.R. 860, 124 A.L.R. 1298, 148 A.L.R. 1270.

Anticipatory release prior to accident or injury, applicability in case of, of rule that release of one joint tortfeasor releases other. 112 A.L.R. 78.

Insurance or benefits of relief department, release of employer by acceptance of, as affecting liability of joint tortfeasor. 50 A.L.R. 1105, 66 A.L.R. 206, 104 A.L.R. 846, 124 A.L.R. 1298, 148 A.L.R. 1270.

Limitation statute as suspended by payment by one of two or more joint debtors. 71 A.L.R. 375, 121 A.L.R. 549, 74 A.L.R.2d 1287.

Master or principal, release of, as affecting liability of servant or agent for tort, or vice versa. 92 A.L.R.2d 533.

Punitive nature of action as affecting application of rule that release of one tortfeasor releases others. 85 A.L.R. 1164.

Release of one joint tortfeasor as discharging liability of others under uniform contribution among Tortfeasors Act and other statutes expressly governing effect of release. 6 A.L.R.5th 883.

Release of one of two or more persons whose independent and tortious acts combined to produce an injury as releasing others. 134 A.L.R. 1225.

Release of, or covenant not to sue, one tortfeasor as affecting liability of others. 50 A.L.R. 1057, 66 A.L.R. 206, 104 A.L.R. 846, 124 A.L.R. 1298, 148 A.L.R. 1270.

Release of, or satisfaction by, one not in fact liable for tort, as releasing other tortfeasors. 66 A.L.R. 213, 104 A.L.R. 846, 124 A.L.R. 1298, 148 A.L.R. 1270.

Validity and effect of “Mary Carter” or similar agreement setting maximum liability of one co-tortfeasor and providing for reduction or extinguishment thereof relative to recovery against nonagreeing co-tortfeasor. 22 A.L.R.5th 483.

10-6-8. [Repealed.]

History of Section. P.L. 1940, ch. 940, § 5; G.L. 1956, § 10-6-7 ; P.L. 2006, ch. 213, § 2; repealed by P.L. 2021, ch. 410, § 2, effective July 14, 2021; repealed by P.L. 2021, ch. 411, § 2, effective July 14, 2021.

Compiler's Notes

Former § 10-6-8 concerned liability to contribution of a tortfeasor released by the injured person.

10-6-9. Right of indemnity preserved.

This chapter does not impair any right of indemnity under existing law.

History of Section. P.L. 1940, ch. 940, § 6; G.L. 1956, § 10-6-9 .

NOTES TO DECISIONS

Equitable Indemnity.

Although the right to indemnity traditionally arose from a contract, express or implied, modern law indicates a trend to allow indemnity on the basis of equity — for example, when one person is exposed to liability by the wrongful act of another in which he does not join. Silva v. Home Indem. Co., 416 A.2d 664, 1980 R.I. LEXIS 1665 (R.I. 1980).

Existing Indemnity.

This section preserves a right of action for indemnity which is already in existence. Wilson v. Krasnoff, 560 A.2d 335, 1989 R.I. LEXIS 119 (R.I. 1989).

Statutory Indemnity.

There is no cause of action of statutory indemnity under this chapter. Wilson v. Krasnoff, 560 A.2d 335, 1989 R.I. LEXIS 119 (R.I. 1989).

Collateral References.

Products liability: seller’s right to indemnity from manufacturer. 79 A.L.R.4th 278.

10-6-10. Uniformity of construction.

This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states that enact it.

History of Section. P.L. 1940, ch. 940, § 8; G.L. 1956, § 10-6-10 .

10-6-11. Severability.

If any provision of this chapter or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable.

History of Section. P.L. 1940, ch. 940, § 7; G.L. 1956, § 10-6-11 .

10-6-12. Court-approved settlements.

The following provisions apply solely and exclusively to judicially approved good-faith settlements of claims relating to the Feld Entertainment/Ringling Brothers Circus accident on May 4, 2014.

  1. A release by a claimant of one joint tortfeasor, whether before or after judgment, does not discharge the other joint tortfeasors unless the release so provides, but such release shall reduce the claim against the other joint tortfeasors in the amount of the consideration paid for the release.
  2. A release by a claimant of one joint tortfeasor relieves them from liability to make a contribution to another joint tortfeasor.
  3. For purposes of this section, a good-faith settlement is one that does not exhibit collusion, fraud, dishonesty, or other wrongful or tortious conduct intended to prejudice the non-settling tortfeasor(s), irrespective of the settling or non-settling tortfeasors’ proportionate share of liability.

History of Section. P.L. 2019, ch. 23, § 1; P.L. 2019, ch. 24, § 1.

Compiler’s Notes.

P.L. 2019, ch. 23, § 1, and P.L. 2019, § 24, § 1 enacted identical versions of this section.

Applicability.

P.L. 2019, ch. 23, § 2, provides: “This act shall take effect upon passage [June 13, 2019] and shall apply to all claims pending at the time of passage or asserted thereafter; provided, however, that this act shall not apply to, affect or impair releases executed before the passage date.”

P.L. 2019, ch. 24, § 2, provides: “This act shall take effect upon passage [June 13, 2019] and shall apply to all claims pending at the time of passage or asserted thereafter; provided, however, that this act shall not apply to, affect or impair releases executed before the passage date.”

Chapter 7 Death by Wrongful Act

10-7-1. Liability for damages for causing death.

Whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who, or the corporation which, would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.

History of Section. C.P.A. 1905, § 234; G.L. 1909, ch. 283, § 14; G.L. 1923, ch. 333, § 14; P.L. 1932, ch. 1912, § 1; G.L. 1938, ch. 477, § 1; P.L. 1949, ch. 2332, § 1; G.L. 1956, § 10-7-1 .

Cross References.

Elevators, liability resulting from failure to maintain safety devices, § 23-33-26 .

Liability insurance, § 27-7-1 et seq.

Worker’s compensation election, effect, § 28-29-21 .

Comparative Legislation.

Death by wrongful act:

Conn. Gen. Stat. § 52-555 et seq.

Mass. Ann. Laws ch. 229, § 1 et seq.

NOTES TO DECISIONS

Act or Neglect Causing Death.
— Common Carriers.

Under G.S. 1872, ch. 193, § 16, common carriers and proprietors of railroads and steamboats were subject to liability for death caused from their negligence or carelessness even though such negligence was merely passive. Bradbury v. Furlong, 13 R.I. 15 , 1880 R.I. LEXIS 29 (1880).

An action would not lie if the injury arose from the passive neglect or omission of duty of the defendant. Bradbury v. Furlong, 13 R.I. 15 , 1880 R.I. LEXIS 29 (1880) (decision prior to Judiciary Act of 1893); Myette v. Gross, 18 R.I. 729 , 30 A. 602, 1894 R.I. LEXIS 78 (1894).

— Common Law Wrong.

The wrongful act and negligence must be such as creates liability for injuries under the common law. Miller v. Coffin, 19 R.I. 164 , 36 A. 6, 1895 R.I. LEXIS 96 (1895).

— Effect of Contract.

City was liable for death caused by neglect of building commissioners, even though the neglect was in the performance of an act that, under the terms of a contract, was to be done by independent contractors. McCaughey v. Tripp, 12 R.I. 449 , 1879 R.I. LEXIS 53 (1879).

— Neglect or Omission.

Negligent performance of a lawful act was a wrongful act under previous version of law. McCaughey v. Tripp, 12 R.I. 449 , 1879 R.I. LEXIS 53 (1879).

— Slanderous Statements.

A claim by husband for wife’s death could not be maintained on allegations that death was caused by persons who enticed the wife away from him and made slanderous statements to her about him which resulted in a weakening of her mind and body since, had the wife lived, she could not have maintained an action for such injury. Neilson v. Brown, 13 R.I. 651 , 1882 R.I. LEXIS 63 (1882).

— Television Broadcast.

Late night talk show on which stuntman demonstrated hanging stunt did not fall within “incitement to immediate harmful conduct” exception to first amendment protection; therefore, wrongful death action against broadcaster and network on theory of negligence and reckless disregard for plaintiff’s welfare, brought by parents of 13-year-old who was found hanging several hours after watching the broadcast, was properly dismissed. DeFilippo v. National Broadcasting Co., 446 A.2d 1036, 1982 R.I. LEXIS 905 (R.I. 1982).

Beneficiaries of Damages.

The personal representative of a decedent may not recover wrongful death or “survival-type” damages when the beneficiary of these damages would be the tortfeasor responsible for the decedent’s death. Aetna Casualty & Sur. Co. v. Curley, 585 A.2d 640, 1991 R.I. LEXIS 13 (R.I. 1991), limited, Commercial Union Ins. Co. v. Pelchat, 727 A.2d 676, 1999 R.I. LEXIS 73 (R.I. 1999).

Conflict of Laws.

In an action between Rhode Island residents for the wrongful death of a passenger in defendant’s automobile in an automobile collision in Massachusetts, the defendants’ wrongful conduct will be judged by the law of Massachusetts, but the host’s duty of care to his passengers and the measure of damages to be applied will be governed by the law of Rhode Island. Woodward v. Stewart, 104 R.I. 290 , 243 A.2d 917, 1968 R.I. LEXIS 647 , cert. dismissed, 393 U.S. 957, 89 S. Ct. 387, 21 L. Ed. 2d 371, 1968 U.S. LEXIS 276 (1968).

In an action by a Rhode Island estate against a New York estate for wrongful death resulting from an automobile collision in Massachusetts, this act rather than the law of Massachusetts will apply. Tiernan v. Westext Transport, Inc., 295 F. Supp. 1256, 1969 U.S. Dist. LEXIS 8378 (D.R.I. 1969).

This chapter was not applicable to an action by a Rhode Island administratrix against a Massachusetts corporation for the wrongful death of a Rhode Island resident in Massachusetts from negligence alleged to have occurred in Massachusetts. Thayer v. Perini Corp., 303 F. Supp. 683, 1969 U.S. Dist. LEXIS 10587 (D.R.I. 1969).

This cause of action has extraterritorial effect. Soares v. McClosky, 466 F. Supp. 703, 1979 U.S. Dist. LEXIS 14392 (E.D. Pa. 1979).

Contributory Negligence.

Contributory negligence was a bar to recovery in action for wrongful death. Chaffee v. Old Colony R.R., 17 R.I. 658 , 24 A. 141, 1892 R.I. LEXIS 51 (1892); Wells v. Knight, 32 R.I. 432 , 80 A. 16, 1911 R.I. LEXIS 65 (1911); Rawding v. Lonsdale Bakery Co., 71 R.I. 50 , 42 A.2d 275, 1945 R.I. LEXIS 15 (1945).

In action for wrongful death of person of unsound mind, contributory negligence could not be inferred from the mere fact that such person was at large. Simpson v. Rhode Island Co., 26 R.I. 200 , 58 A. 658, 1904 R.I. LEXIS 49 (1904).

Evidence.

Testimony concerning a statement made to the daughter by her deceased mother concerning accident that “when she was getting closer to her street she said the car came on her so fast that she didn’t know what happened afterwards,” was testimony admissible as an exception to the rule against hearsay evidence. Foster v. De Andrade, 88 R.I. 442 , 149 A.2d 713, 1959 R.I. LEXIS 31 (1959).

Where on direct examination defendant was asked by his counsel whether or not he had been charged by the police with speeding in relation to the accident in question wherein administrator’s decedent had met death as a result of injuries sustained when struck by motor vehicle driven by defendant, plaintiff’s objection was sustained in that the information sought to be brought out by the defendant was immaterial and irrelevant. Foster v. De Andrade, 88 R.I. 442 , 149 A.2d 713, 1959 R.I. LEXIS 31 (1959).

In most cases, causation is established by competent evidence demonstrating that but for the defendant’s negligence, the decedent’s injuries would not have occurred. Allen v. State, 420 A.2d 70, 1980 R.I. LEXIS 1843 (R.I. 1980).

In an action for wrongful death, the plaintiff must, as in any other negligence suit, introduce competent evidence to establish a causal relationship between the defendant’s act or omission and the injuries resulting in the decedent’s death. Allen v. State, 420 A.2d 70, 1980 R.I. LEXIS 1843 (R.I. 1980).

In a wrongful death action, pursuant to R.I. Gen. Laws § 10-7-1 , involving the suicide death of a patient approximately 36 hours after he was discharged from a hospital emergency room, while the doctor should have sought an emergency mental health hold under R.I. Gen. Laws § 40.1-5-7 , the trial justice did not err in granting defendants’ R.I. Super. Ct. R. Civ. P. 50 motion for judgment as a matter of law because the decedent’s family failed to present expert testimony with respect to the issue of proximate cause. The record was devoid of any expert opinion that the decedent would not have been discharged within 36 hours after his arrival at a mental health facility. Almonte v. Kurl, 46 A.3d 1, 2012 R.I. LEXIS 95 (R.I. 2012).

Fellow Servant Rule.

A common carrier was not liable in a wrongful death action for the death of an employee whose death was the result of the negligence of a fellow servant. Miller v. Coffin, 19 R.I. 164 , 36 A. 6, 1895 R.I. LEXIS 96 (1895).

Maritime Claims.

This act is not applicable to a claim for death by reason of maritime employment. Savard v. Marine Contracting, Inc., 296 F. Supp. 1171, 1969 U.S. Dist. LEXIS 10760 (D. Conn. 1969).

Measure of Damages.

To ascertain the damages it is necessary (1) to ascertain the gross amount of the decedent’s prospective income or earnings, (2) to deduct what the decedent would have to lay out, as a producer, computed according to his station in life, to render the service or to acquire such income or earnings, and (3) to reduce the result to present value. McCabe v. Narragansett Elec. Lighting Co., 26 R.I. 427 , 59 A. 112 (1904); Reynolds v. Narragansett Elec. Lighting Co., 26 R.I. 457 , 59 A. 393 (1904); Dimitri v. Peter Cienci & Son, 41 R.I. 393 , 103 A. 1029, 7 A.L.R. 1336 (1918), overruling Schnable v. Providence Pub. Mkt., 24 R.I. 477 , 53 A. 634, 1902 R.I. LEXIS 108 (1902). See also Gonyer v. Russell, 160 F. Supp. 537, 1958 U.S. Dist. LEXIS 2522 (D.R.I. 1958), aff'd, 264 F.2d 761, 1959 U.S. App. LEXIS 4143 (1st Cir. 1959).

In calculating amount of damages for wrongful death of minor the only relevant earnings are those after age 21 and any before that age would not belong to the decedent. Williams v. United States, 435 F.2d 804, 1970 U.S. App. LEXIS 5980 (1st Cir. 1970).

Damages under the statute compensate only for the loss to the estate and the expenses the deceased would have had to lay out as a producer must be considered to the extent that they could reasonably be expected to prevent an accumulated estate. Williams v. United States, 435 F.2d 804, 1970 U.S. App. LEXIS 5980 (1st Cir. 1970).

In counting damages for wrongful death of nine-year-old boy where the court found a thirty-nine year earning period from age twenty-one to age sixty, to arrive at the figure, it should have measured the present worth of a period of earnings which would begin at a distant date instead of a period commencing forthwith and should have further discounted the figure from age twenty-one back to the date of death. Williams v. United States, 435 F.2d 804, 1970 U.S. App. LEXIS 5980 (1st Cir. 1970).

In an action for damages for wrongful death of minor who wanted a naval career like his father, in finding that gross earnings of the decedent plus expenses to be deducted therefrom to arrive at net figure which would be the same as his father’s navy pay, calculated as full base pay omitting only allowances and failing to deduct cost of supporting the dependents, the trial court misinterpreted measure of damages under the law. Williams v. United States, 435 F.2d 804, 1970 U.S. App. LEXIS 5980 (1st Cir. 1970).

— Earning Capacity.

Dependents could recover for wrongful death even though he was not actually working at the time but had worked and could work. Walsh v. Bressette, 51 R.I. 354 , 155 A. 1, 1931 R.I. LEXIS 54 (1931).

A person of ordinary physical and mental powers is presumed to have an earning capacity. Zannelle v. Pettine, 51 R.I. 359 , 155 A. 236, 1931 R.I. LEXIS 56 (1931).

Damages would not be allowed for money received from decedent’s son for board since not earned by decedent’s personal efforts. Burdick v. South County Pub. Serv. Co., 54 R.I. 310 , 172 A. 893, 1934 R.I. LEXIS 74 (1934).

Trial justice should have awarded defendant new trial where testimony was insufficient as to decedent’s earning capacity and personal expenses. Silvia v. Caizz, 63 R.I. 172 , 7 A.2d 704, 1939 R.I. LEXIS 79 (1939).

— — Minor Children.

In computing damages to the estate of a minor, the amount of his earnings during minority should not be included unless he had been emancipated, as loss of earnings which belong to the father is not damage to the minor’s estate. Dimitri v. Peter Cienci & Son, 41 R.I. 393 , 103 A. 1029, 1918 R.I. LEXIS 59 (1918).

Damages for wrongful death of child could be recovered, although he was not one who had demonstrated a capacity toward some particular vocation, by showing jury his age, sex, physical and mental characteristics, position in life, and earnings of parents. Gill v. Laquerre, 51 R.I. 158 , 152 A. 795, 1931 R.I. LEXIS 4 (1931).

In suit for wrongful death of child father could not testify as to his intentions for the child’s career nor could persons in this field testify as to general earnings and expenses. Gill v. Laquerre, 51 R.I. 158 , 152 A. 795, 1931 R.I. LEXIS 4 (1931).

The problem for jurors in an action for wrongful death was to determine what the net earnings of the deceased boy would have been during his expectancy of life by drawing their own conclusions from the evidence as to the character of work he might have engaged in and his probable earnings and expenses of living in his station in life. Zannelle v. Pettine, 51 R.I. 359 , 155 A. 236, 1931 R.I. LEXIS 56 (1931).

Father in action for wrongful death of son could testify as to father’s earnings and expectancy that son would work in same capacity as bearing upon the conditions under which he would be reared and educated, to show his station in life, where work required no special skill, training or ability and son had been capable of doing it. Zannelle v. Pettine, 51 R.I. 359 , 155 A. 236, 1931 R.I. LEXIS 56 (1931).

— Life Expectancy.

It was proper to introduce into evidence Carlisle Life Tables. Sweet v. Providence & S. R.R., 20 R.I. 785 , 40 A. 237, 1890 R.I. LEXIS 81 (1890).

Standard life and annuity tables showing at different ages the probable duration of life and the present value of a life annuity are competent evidence for assisting the jury in determination of amount of damages to be awarded. Reynolds v. Narragansett Elec. Lighting Co., 26 R.I. 457 , 59 A. 393, 1904 R.I. LEXIS 110 (1904).

Life tables and tables determining the present value of future income were for the aid of the jury and not controlling, but if admitted should be based on the annual net income for the life expectancy, with the present value of the dollar computed on an annuity basis. Turner v. Maxon, 53 R.I. 164 , 165 A. 372, 1933 R.I. LEXIS 57 (1933).

Life expectancy tables are merely guides to assist a court or jury in arriving at its verdict. Gonyer v. Russell, 160 F. Supp. 537, 1958 U.S. Dist. LEXIS 2522 (D.R.I. 1958), aff'd, 264 F.2d 761, 1959 U.S. App. LEXIS 4143 (1st Cir. 1959).

Life expectancy is not to be regarded as synonymous with work expectancy. Gonyer v. Russell, 160 F. Supp. 537, 1958 U.S. Dist. LEXIS 2522 (D.R.I. 1958), aff'd, 264 F.2d 761, 1959 U.S. App. LEXIS 4143 (1st Cir. 1959).

— Loss of Parental Care.

Loss of parental care suffered by surviving child is not an element of damage to be considered in a wrongful death action. McCabe v. Narragansett Elec. Lighting Co., 27 R.I. 272 , 61 A. 667, 1905 R.I. LEXIS 82 (1905).

— Pain and Suffering.

Damages for pain and suffering would be recoverable if the wrongful death of the decedent is compensable under the Dram Shop Act, § 3-11-1 (now see chapter 14 of title 3). Beaupre v. Boulevard Billiard Club, 510 A.2d 415, 1986 R.I. LEXIS 478 (R.I. 1986).

Persons Against Whom Action Lies.
— Corporations.

Actions may be maintained against corporations as well as against natural persons. Chase v. American S. B. Co., 10 R.I. 79 , 1871 R.I. LEXIS 15 (1871), aff'd, 83 U.S. 522, 21 L. Ed. 369, 1872 U.S. LEXIS 1180 (1873).

— Landlord.

Landlord who agrees with tenant to make repairs is liable in tort for injury to member of tenant’s family resulting from the landlord’s neglect to repair. King v. Brown, 102 R.I. 42 , 227 A.2d 589, 1967 R.I. LEXIS 642 (1967).

— Police Officers.

Police officers were found not liable for the wrongful death of the decedent because the force used in attempting to stop the decedent was justified under § 12-7-9 which allows the use of force dangerous to human life by officers in certain circumstances. Connors v. McNulty, 697 F.2d 18, 1983 U.S. App. LEXIS 27703 (1st Cir. 1983).

Where police officer stopped a car simply to render assistance and the driver of the car sped away from him in a reckless manner triggering an 80-mile-an-hour high-speed chase that resulted in the death of another person, the police officer’s conduct was not a proximate cause of the decedent’s death, and therefore his employer, the town, was also absolved from liability for the death as a matter of law. Almeida v. North Providence, 468 A.2d 915, 1983 R.I. LEXIS 1123 (R.I. 1983).

Persons for Whose Death Recovery Allowed.
— Firefighter in Performance of Duty.

The provisions for a surviving spouse under the injured on duty statute (IOD), chapter 19 of title 45, do not come close to providing the same comprehensive remedy for loss that the wrongful death statute does, since the wrongful death statute was designed to remedy the pecuniary loss and the loss of consortium suffered by the surviving spouse, while the intent behind the IOD was to provide greater benefits to certain public employees injured on the job. Hargreaves v. Jack, 750 A.2d 430, 2000 R.I. LEXIS 111 (R.I. 2000).

Section 45-19-12 of the injured on duty statute, with respect to the claim of a surviving spouse, is not an exclusive remedy, and thus the plaintiff was not limited to the statutory benefits contained therein, but could seek additional remedies made available by the wrongful death statute, subject to any applicable common-law and statutory defenses. Hargreaves v. Jack, 750 A.2d 430, 2000 R.I. LEXIS 111 (R.I. 2000).

— Married Women.

Recovery could be had for a death, even though at the time of the accident decedent was not engaged in an income producing occupation but devoted time and energy to the maintenance of her household and the care of her children. Burns v. Brightman, 44 R.I. 316 , 117 A. 26, 1922 R.I. LEXIS 36 (1922).

Providing for the survival of the right of action against the estate of the wrongdoer by means of the Wrongful Death Act could not confer the right of action upon one who could not have maintained it against the tortfeasor if he had lived, the wife not being able to bring an action against her husband’s estate for personal injuries had she lived. Castellucci v. Castellucci, 96 R.I. 34 , 188 A.2d 467, 1963 R.I. LEXIS 41 (1963).

— Military Personnel.

The United States cannot be held liable for the death of military personnel under this chapter due to the negligence of U.S. officials where the death arises out of activity incident to the service. Seveney v. United States Government, Dep't of Navy, 550 F. Supp. 653, 1982 U.S. Dist. LEXIS 9876 (D.R.I. 1982).

— Unborn Children.

No action could be maintained for the wrongful death of a child en ventre sa mere, because such child could not have maintained an action had he lived. But see Sylvia v. Gobeille, 101 R.I. 76 , 220 A.2d 222, 1966 R.I. LEXIS 357 (1966) (a child born alive has a right of action in tort against a negligent wrongdoer for prenatal injuries). Gorman v. Budlong, 23 R.I. 169 , 49 A. 704, 1901 R.I. LEXIS 115 (1901), overruled, Sylvia v. Gobeille, 101 R.I. 76 , 220 A.2d 222, 1966 R.I. LEXIS 357 (1966). But see Sylvia v. Gobeille, 101 R.I. 76, 220 A.2d 222, 1966 R.I. LEXIS 357 (1966).

Stillborn infant was a “person” within the meaning of this section regardless of its viability at the time of the alleged wrongful neglect. Presley v. Newport Hosp., 117 R.I. 177 , 365 A.2d 748, 1976 R.I. LEXIS 1612 (1976).

A nonviable fetus is not a “person” within the meaning of this statute. Miccolis v. AMICA Mut. Ins. Co., 587 A.2d 67, 1991 R.I. LEXIS 35 (R.I. 1991).

Release of Cause of Action.

A release of a cause of action bars a subsequent wrongful-death action founded upon the decedent’s death. Hall v. Knudsen, 535 A.2d 772, 1988 R.I. LEXIS 7 (R.I. 1988).

Separate Types of Action.

An action for wrongful death under this section and for medical expenses and loss of earnings before death under § 10-7-5 are two independent causes of action and would call for separate judgments. O'Leary v. Bingham, 90 R.I. 441 , 159 A.2d 619, 1960 R.I. LEXIS 46 (1960).

Strict Construction.

This statute, being in derogation of the common law, is strictly construed. Carrigan v. Cole, 35 R.I. 162 , 85 A. 934, 1913 R.I. LEXIS 11 (1913); Walsh v. Bressette, 51 R.I. 354 , 155 A. 1, 1931 R.I. LEXIS 54 (1931).

Worker’s Compensation.

Widow of employee who was covered by workmen’s compensation could not maintain action under this chapter. National India Rubber Co. Kilroe, 54 R.I. 333 , 173 A. 86, 1934 R.I. LEXIS 83 (1934).

Collateral References.

Abandonment or desertion: parent’s desertion, abandonment, or failure to support minor child as affecting right or measure of recovery for wrongful death of child. 53 A.L.R.3d 566.

Action against spouse or estate for causing death of other spouse. 28 A.L.R.2d 662.

Action ex contractu for wrongful death. 86 A.L.R.2d 316.

Action for death caused by maritime tort within a state’s territorial waters. 71 A.L.R.2d 1296.

Action for death of unborn child.

Civil liability for use of firearm in defense of habitation or property. 100 A.L.R.2d 1021.

Class to whom, or for benefit of whom, a right of action for death is given by statute, right of action for death against tortfeasor who is member of class. 95 A.L.R.2d 585.

Compensation from other sources as precluding recovery for death. 18 A.L.R. 686, 95 A.L.R. 575.

Contributory negligence of beneficiary as affecting action under death or survival statute. 2 A.L.R.2d 785.

Damages for wrongful death of husband as affected by prior abandonment. 18 A.L.R. 1410, 90 A.L.R. 920.

Danger or apparent danger of great bodily harm or death as condition of self-defense in civil action for death. 25 A.L.R.2d 1215.

Death or injury to occupant of airplane from collision or near-collision with another aircraft. 64 A.L.R.5th 235.

Druggist’s civil liability for suicide consummated with drugs furnished by him. 58 A.L.R.3d 828.

Effect of death of beneficiary, following wrongful death, upon damages. 73 A.L.R.4th 441.

Effect of death of beneficiary upon right of action under death statute. 13 A.L.R.4th 1060.

Excessiveness or adequacy of awards of damages for personal injury or death in actions under Federal Employers’ Liability Act (45 USCS § 51 et seq.)—modern cases. 97 A.L.R. Fed. 189.

Excessiveness or adequacy of compensatory damages for personal injury to or death of seaman in actions under Jones Act (46 USCS Appx. § 688) or doctrine of unseaworthiness—modern cases. 96 A.L.R. Fed. 541.

Fact that tortfeasor is member of class of beneficiaries as affecting right to maintain action for wrongful death. 95 A.L.R.2d 585.

Failure to use or misuse of automobile child safety seat or restraint system as affecting recovery for personal injury or death. 46 A.L.R.5th 557.

First Amendment guaranty of freedom of speech or press as defense to liability stemming from speech allegedly causing bodily injury. 94 A.L.R. Fed. 26.

Husband and wife, personal relations of, or marital misconduct of either spouse, as affecting action for death of spouse. 18 A.L.R. 1409, 90 A.L.R. 920.

Inclusion of funds in savings bank trust (Totten Trust) in determining surviving spouse’s interest in decedent’s estate. 64 A.L.R.3d 187.

Insurer’s tort liability for wrongful or negligent issuance of life policy. 37 A.L.R.4th 972.

Judgment in favor of defendant in action by personal representative for damages to estate by injury resulting in death as bar to action in behalf of statutory beneficiaries.

Landlord’s liability for injury or death of tenant’s child from lead paint poisoning. 19 A.L.R.5th 405.

Liability for prenatal injuries. 40 A.L.R.3d 1222.

Liability in damages for death of window washer.

Liability of motorbus carrier or driver for death of, or injury to, discharged passenger struck by other vehicle. 16 A.L.R.5th 1.

Liability of one servicing, repairing, or adjusting an oil-burning furnace or other oil-burning heating appliance for personal injury, death or property damage. 18 A.L.R.2d 1326.

Liability of parent for injury to unemancipated child caused by parent’s negligence - Modern cases. 6 A.L.R.4th 1066.

Liability of school or school personnel in connection with suicide of student. 17 A.L.R.5th 179.

Modern status of intentional infliction of mental distress as independent tort; “outrage.” 38 A.L.R.4th 998.

Officers, personal liability of peace officer or his bond for negligence causing death. 60 A.L.R.2d 873.

Recovery for death resulting from mental shock or distress in connection with injury to or interference with tangible property.

Recovery of damages for expense of medical monitoring to detect or prevent future disease or condition. 17 A.L.R.5th 327.

Relationship of parent and child between tortfeasor and person by whom or for whose benefit death action is brought as affecting right to maintain action under death statute. 119 A.L.R. 1394.

Release by, or judgment in favor of, person injured as barring action for his death. 39 A.L.R. 579.

Return or tender of consideration for release or compromise as condition of death action. 134 A.L.R. 17.

Right of action for death where decedent left no next of kin or person within class of beneficiaries named in the statute creating the right of action. 117 A.L.R. 953.

Right of action for injury to or death of woman who consented to illegal abortion. 36 A.L.R.3d 630.

Right to maintain action or to recover damages for death of unborn child. 84 A.L.R.3d 411.

Surviving children: minority of surviving children as tolling limitation period in state wrongful death action. 85 A.L.R.3d 162.

Tort liability for window washer’s injury or death. 69 A.L.R.4th 207.

Use of set gun, trap, or similar device on defendant’s own property. 47 A.L.R.3d 646.

Venue of wrongful death action. 58 A.L.R.5th 535.

When is death “instantaneous” for purposes of wrongful death or survival action. 75 A.L.R.4th 151.

Wrongful death damages for loss of expectancy of inheritance from decedent. 42 A.L.R.5th 465.

Wrongful death of parent: action against parent by or on behalf of unemancipated minor child for wrongful death of other parent. 87 A.L.R.3d 849.

10-7-1.1. Pecuniary damages — How determined.

Pecuniary damages to the beneficiaries described under § 10-7-2 and recoverable by the beneficiaries shall be ascertained as follows:

  1. Determine the gross amount of the decedent’s prospective income or earnings over the remainder of his or her life expectancy, including all estimated income he or she would probably have earned by his or her own exertions, both physical and mental. Pecuniary damages shall include the value of homemaker services lost as a result of the death of a homemaker. The fair value of homemaker services shall not be limited to moneys actually expended to replace the services usually provided by the homemaker. In such a suit, the value of homemaker services may be shown by expert testimony, but expert testimony is not required.
  2. Deduct from the amount determined in subdivision (1) the estimated personal expenses that the decedent would probably have incurred for himself or herself, exclusive of any of his dependents, over the course of his or her life expectancy.
  3. Reduce the remainder thus ascertained to its present value as of the date of the award. In determining the award, evidence shall be admissible concerning economic trends, including but not limited to projected purchasing power of money, inflation, and projected increase or decrease in the costs of living.

History of Section. P.L. 1971, ch. 46, § 1; P.L. 1987, ch. 81, § 2; P.L. 1997, ch. 326, § 77.

Law Reviews.

2000 Survey of Rhode Island Law, see 6 Roger Williams U. L. Rev. 593 (2001).

NOTES TO DECISIONS

Application.

This statute is inapplicable to a suit for wrongful death against the United States where the federal court characterized the damage provisions as partly punitive because under the Federal Tort Claims Act recovery of punitive damages is not allowed. D'Ambra v. United States, 481 F.2d 14, 1973 U.S. App. LEXIS 9528 (1st Cir.), cert. denied, 414 U.S. 1075, 94 S. Ct. 592, 38 L. Ed. 2d 482, 1973 U.S. LEXIS 1697 (1973).

Award Consistent With Evidence.

In an action for wrongful death the ultimate award was based on a series of predictions, none of which involved absolute certainty, by the jury and if the award was a reasonable response to the evidence and the decision of the trial justice affirming the verdict neither misconceived nor misconstrued any material evidence, the award would not be disturbed. Romano v. Duke, 111 R.I. 459 , 304 A.2d 47, 1973 R.I. LEXIS 1228 (1973).

Computation of Damages.

In awarding damages for wrongful death future income taxes assessed to decedent’s potential earnings must be considered. Turcotte v. Ford Motor Co., 494 F.2d 173, 1974 U.S. App. LEXIS 10076 (1st Cir. 1974).

Even in cases not concerning wrongful death, predictions of wage growth due to economic trends may be admissible if the trial justice considers the information material and relevant to the issue of damages in a particular case. Markham v. Cross Transp., 119 R.I. 213 , 376 A.2d 1359, 1977 R.I. LEXIS 1899 (1977).

The legislature intended to include in the computation of decedent’s prospective income or earnings income that was not only earned before but also received during retirement. Pray v. Narragansett Improvement Co., 434 A.2d 923, 1981 R.I. LEXIS 1262 (R.I. 1981).

Pension and social security income are part of a decedent’s earnings. Pray v. Narragansett Improvement Co., 434 A.2d 923, 1981 R.I. LEXIS 1262 (R.I. 1981).

— Loss of Consortium.

By its plain meaning this section encompasses purely economic damages to the decedent, whereas the plain language of § 10-7-1.2 allows for the bringing of a claim for loss of consortium where a preexisting relationship between decedent and survivor is relevant to recovery. Sindelar v. Leguia, 750 A.2d 967, 2000 R.I. LEXIS 115 (R.I. 2000).

Evidence of Prospective Earnings.

Even though plaintiffs did not introduce expert testimony on the issue of the decedent’s prospective earnings, there was sufficient evidence for the case to go to the jury on the issue of damages. Taft v. Cerwonka, 433 A.2d 215, 1981 R.I. LEXIS 1241 (R.I. 1981).

Life Expectancy.

Life expectancy is not the same as work expectancy. Pray v. Narragansett Improvement Co., 434 A.2d 923, 1981 R.I. LEXIS 1262 (R.I. 1981).

Personal Expenses Defined.

To ascertain damages receivable in an action for wrongful death, the term personal expenses referred to in the deductions was defined as what the deceased would have to lay out, as a producer, to render the service or to acquire the money he might be expected to produce and plaintiffs’ argument that the 1971 amendment allowed a deduction only for deceased’s living expenses lacked logic and overlooked the legislative intent. Romano v. Duke, 111 R.I. 459 , 304 A.2d 47, 1973 R.I. LEXIS 1228 (1973).

Collateral References.

Admissibility of evidence, in action for personal injury or death, of injured party’s use of intoxicants or illegal drugs on issue of life expectancy. 86 A.L.R.4th 1135.

Recovery of damages for loss of consortium resulting from death of child—modern status. 77 A.L.R.4th 411.

Right of workers’ compensation insurer or employer paying to a workers’ compensation fund, on the compensable death of an employee with no dependents, to indemnity or subrogation from proceeds of wrongful death action brought against third-party tortfeasor. 7 A.L.R.5th 969.

10-7-1.2. Liability for loss of consortium — Liability for loss of society and companionship.

  1. Whenever the death of a married person shall be caused by the wrongful act, neglect, or default of another person, the decedent’s spouse may recover damages against the person for loss of consortium and for the emotional distress, grief, and loss of enjoyment of life as a result of the death.
  2. Whenever the death of a parent or parents of a son or daughter shall be caused by the wrongful act, neglect, or default of another person, the son or daughter may recover damages against the person for the loss of parental society and companionship and for the emotional distress, grief, and loss of enjoyment of life as a result of the death.
  3. Whenever the death of a son or daughter shall be caused by the wrongful act, neglect, or default of another person, the parent or parents of the son or daughter may recover damages against the person for the loss of the son’s or daughter’s society and companionship and for the emotional distress, grief, and loss of enjoyment of life as a result of the death.

History of Section. P.L. 1982, ch. 217, § 1; P.L. 1984, ch. 64, § 2; P.L. 2010, ch. 232, § 1; P.L. 2010, ch. 240, § 1; P.L. 2021, ch. 341, § 1, effective July 12, 2021; P.L. 2021, ch. 342, § 1, effective July 12, 2021.

Compiler's Notes.

P.L. 2021, ch. 341, § 1, and P.L. 2021, ch. 342, § 1 enacted identical amendments to this section.

Applicability.

P.L. 2021, ch. 341, § 2, provides that the amendment to this section by that act takes effect upon passage [July 12, 2021] and applies only to all claims resulting from injuries occurring after the effective date.

P.L. 2021, ch. 342, § 2, provides that the amendment to this section by that act takes effect upon passage [July 12, 2021] and applies only to all claims resulting from injuries occurring after the effective date.

Cross References.

Loss of consortium or society and companionship as result of negligent injury, § 9-1-41 .

NOTES TO DECISIONS

Construction With § 10-7-1.1.

By its plain meaning § 10-7-1.1 encompasses purely economic damages to the decedent, whereas the plain language of this section allows for the bringing of a claim for loss of consortium where a preexisting relationship between decedent and survivor is relevant to recovery. Sindelar v. Leguia, 750 A.2d 967, 2000 R.I. LEXIS 115 (R.I. 2000).

Equitable Adoption.

Although an adoptive father’s death prior to the formal adoption of a child satisfies one of the five elements required to establish equitable adoption for purposes of the wrongful death statute, the factual issues which needed to be determined by a jury as to the other four elements precluded the granting of a motion for summary judgment on that issue. Crawford v. Cooper/T. Smith Stevedoring Co., 14 F. Supp. 2d 202, 1998 U.S. Dist. LEXIS 11906 (D.R.I. 1998).

Illustrative Cases.

As a decedent’s son lacked sufficient expert testimony to establish his medical negligence and wrongful death claims, he did not have a viable claim under R.I. Gen. Laws § 10-7-1.2(b) for loss of society and companionship. Malinou v. Miriam Hosp., 24 A.3d 497, 2011 R.I. LEXIS 94 (R.I. 2011).

Prospective Application.

It is evident from the language that that portion of the amendment allowing recovery for spousal loss of consortium is intended to be applied prospectively rather than retroactively. It was therefore improper for the trial justice to apply this amendment to a cause of action that accrued in June 1980, four years prior to the effective date of the amendment. Cobe v. Hersey, 576 A.2d 1226, 1990 R.I. LEXIS 127 (R.I. 1990).

10-7-2. Persons who may bring actions — Limitation of actions — Minimum recovery period.

Every action under this chapter, other than one brought under § 10-7-1.2 , shall be brought by and in the name of the executor or administrator of the deceased person, whether appointed or qualified within or without the state, and of the amount recovered in every action under this chapter one-half (1/2) shall go to the husband or widow, and one-half (1/2) shall go to the children of the deceased, and if there are no children, the whole shall go to the husband or widow, and, if there is no husband or widow, to the next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; except that no person who is adjudged to be in willful contempt of being in excess of six (6) months in arrears of an order to pay child support for the deceased individual shall be allowed recovery pursuant to this chapter and a person so adjudged shall be deemed to have predeceased the child for the purpose of determining distribution under the intestacy statute. Every action brought under § 10-7-1.2 shall be brought by and in the name of the person or persons sustaining the loss of society, companionship and/or consortium and the amount recovered shall go to the person or persons who sustained the loss. Except as otherwise provided, every action brought pursuant to this chapter shall be commenced within three (3) years after the death of the person. With respect to any death caused by any wrongful act, neglect or default which is not known at the time of death, the action shall be commenced within three (3) years of the time that the wrongful act, neglect or default is discovered or, in the exercise of reasonable diligence, should have been discovered. Whenever any person or corporation is found liable under §§ 10-7-1 10-7-4 he or she or it shall be liable in damages in the sum of not less than two hundred fifty thousand dollars ($250,000).

History of Section. C.P.A. 1905, § 234; G.L. 1909, ch. 283, § 14; G.L. 1923, ch. 333, § 14; P.L. 1932, ch. 1912, § 1; G.L. 1938, ch. 477, § 1; P.L. 1949, ch. 2332, § 1; G.L. 1956, § 10-7-2 ; P.L. 1958, ch. 151, § 1; P.L. 1980, ch. 198, § 1; P.L. 1981, ch. 101, § 1; P.L. 1982, ch. 435, § 1; P.L. 1984, ch. 237, § 1; P.L. 1989, ch. 124, § 1; P.L. 1989, ch. 525, § 1; P.L. 1994, ch. 180, § 1; P.L. 1997, ch. 326, § 30; P.L. 1998, ch. 123, § 1; P.L. 2002, ch. 320, § 1; P.L. 2002, ch. 345, § 1.

Cross References.

Death benefits payable under workers’ compensation, § 28-33-12 .

Service of process on lands ceded to United States, § 42-1-2 .

Law Reviews.

2000 Survey of Rhode Island Law, see 6 Roger Williams U. L. Rev. 593 (2001).

Jillian Nobis, 2017 Survey, Cases: Tort Law: O’Connell v. Walmsley, 23 Roger Williams U. L. Rev. 739 (2018).

NOTES TO DECISIONS

Amount of Recovery.

Increase in minimum-recovery amount from $5,000 to $25,000, effected by 1980 amendment, was substantive rather than procedural or remedial, and thus such change must be applied prospectively. Dempsey v. State, 451 A.2d 273, 1982 R.I. LEXIS 1063 (R.I. 1982).

Legislature intended the $250,000 minimum-damages provision of R.I. Gen. Laws § 10-7-2 to apply on a per-claim, rather than per-defendant, basis. O'Connell v. Walmsley, 156 A.3d 422, 2017 R.I. LEXIS 38 (R.I. 2017).

Defendant driver was not individually liable for the statutory minimum of this section because the previous releases of the other tortfeasors in excess of the statutory minimum reduced the claim against defendant. O'Connell v. Walmsley, 156 A.3d 422, 2017 R.I. LEXIS 38 (R.I. 2017).

Because application of the statutory construction principle—that words importing the singular number may be extended or applied to several persons or things—would not lead to a construction inconsistent with the manifest intent of the General Assembly, or be repugnant to some other part of the statute, indeed, quite the opposite, the minimum-damages provision of section 10-7-2 applies to multiple actors, despite its reference to “he, she, or it.” O'Connell v. Walmsley, 156 A.3d 422, 2017 R.I. LEXIS 38 (R.I. 2017).

This section, which prioritizes compensating the deceased’s family for its loss, does not differentiate as to how many defendants caused the loss; whether the decedent’s death was caused by one tortfeasor or multiple tortfeasors, the act’s remedial goal, and the amount of loss endured by the estate, remain the same. O'Connell v. Walmsley, 156 A.3d 422, 2017 R.I. LEXIS 38 (R.I. 2017).

Rather than separately apply the statutory minimum to each defendant, the Wrongful Death Act, R.I. Gen. Laws § 10-7-2 , meshes with R.I. Gen. Laws § 10-6-7 such that the Wrongful Death Act is subject to joint and several liability principles. O'Connell v. Walmsley, 156 A.3d 422, 2017 R.I. LEXIS 38 (R.I. 2017).

Award to Parent.

While this provision recognizes an exception to recovery for those parents who have failed to pay child support, and while the courts have recognized the so-called “cause of death” exception to recovery, there is no requirement that the parental bonds between a parent and a decedent child be strong and close before awarding recovery to a parent. Sindelar v. Leguia, 750 A.2d 967, 2000 R.I. LEXIS 115 (R.I. 2000).

Beneficiaries.

Since the beneficiaries are not determined until time of judgment defendant’s special plea that defendant was the sole heir-at-law of decedent and only person entitled to such recovery was subject to demurrer as premature. O'Leary v. Bingham, 90 R.I. 441 , 159 A.2d 619, 1960 R.I. LEXIS 46 (1960).

In an action brought under this act, the beneficiaries named in this section were entitled to be joined with the administratrix as parties plaintiff, including a son of the decedent who, although a minor at the time of his father’s death, was not totally dependent upon him. Savard v. Marine Contracting, Inc., 296 F. Supp. 1171, 1969 U.S. Dist. LEXIS 10760 (D. Conn. 1969).

Causes Arising in Other States.

Cause of action which arose in another state and was created by statutes similar to this chapter can be enforced in this state. Connor v. New York, N. H. & H. R. Co., 28 R.I. 560 , 68 A. 481, 1908 R.I. LEXIS 73 (1908).

In an action by a Rhode Island estate against a New York estate for wrongful death resulting from an automobile collision in Massachusetts, this section rather than the Massachusetts law will determine the amount of damages. Tiernan v. Westext Transport, Inc., 295 F. Supp. 1256, 1969 U.S. Dist. LEXIS 8378 (D.R.I. 1969).

Conflict of Laws.

This chapter was not applicable to an action by a Rhode Island administratrix against a Massachusetts corporation for the wrongful death of a Rhode Island resident in Massachusetts from negligence alleged to have occurred in Massachusetts. Thayer v. Perini Corp., 303 F. Supp. 683, 1969 U.S. Dist. LEXIS 10587 (D.R.I. 1969).

In evaluating the distribution of settlement proceeds in a motorist fatality case, a federal court sitting in Pennsylvania applied Rhode Island law because the issue concerned the decedent’s Rhode Island estate and potential benefits to surviving family members domiciled in Rhode Island, matters in which Rhode Island had a strong interest not shared by Pennsylvania even though the latter was the site of the fatal accident and also of the decedent’s brief employment and temporary residence. Soares v. McClosky, 466 F. Supp. 703, 1979 U.S. Dist. LEXIS 14392 (E.D. Pa. 1979).

Disposition of Recovery.

The amount recovered in an action for wrongful death is not administered as an asset of the decedent’s estate but is directly distributed to those designated by the statute. Walsh v. Bressette, 51 R.I. 354 , 155 A. 1, 1931 R.I. LEXIS 54 (1931).

Where widow suing for herself and as representative of her children in action for wrongful death, dies before judgment, children have a right to share entire damages recovered since the class which is to participate in recovery is closed and the beneficiaries are determined when the judgment is entered. Walsh v. Bressette, 51 R.I. 354 , 155 A. 1, 1931 R.I. LEXIS 54 (1931).

Duplication of Actions.

Pendency of action by next of kin was a nullity and not a bar to action by administrator where the statute did not authorize action by next of kin. Goodwin v. Nickerson, 17 R.I. 478 , 23 A. 12, 1891 R.I. LEXIS 54 (1891).

Administrator could not bring action after action on behalf of next of kin had resulted in judgment for defendant. Lubrano v. Atlantic Mills, 19 R.I. 129 , 32 A. 205, 1895 R.I. LEXIS 53 (1895).

The statute of limitations in the wrongful death act is strictly construed, and the law did not provide an exception for the case where plaintiff could have filed a tort action while a case under a federal statute was pending, but failed to do so. Crawford v. Cooper/T. Smith Stevedoring Co., 14 F. Supp. 2d 202, 1998 U.S. Dist. LEXIS 11906 (D.R.I. 1998).

Form of Action.

Executrix could bring action for wrongful direct act causing death, whether negligent or intentional, in trespass as well as trespass on the case, since statute does not prescribe form of action. Edmands v. Olson, 64 R.I. 39 , 9 A.2d 860, 1939 R.I. LEXIS 122 (1939).

— Proceedings in Rem.

Libel in rem could not be maintained in admiralty to recover for death of deceased since this chapter does not provide for remedy in rem. Andrade v. United States, 107 F. Supp. 463, 1952 U.S. Dist. LEXIS 3828 (D.R.I. 1952).

Pleadings.

Executrix who brought action in trespass under this statute need not allege whether death was caused by negligent or intentional act. Edmands v. Olson, 64 R.I. 39 , 9 A.2d 860, 1939 R.I. LEXIS 122 (1939).

Viewing the facts in a light most favorable to the administratrix, where defendant dentist could not show a superseding intervening cause, defendant’s motion to dismiss a petition for wrongful death was properly denied. Estate of Fontes v. Salomone, 824 A.2d 433, 2003 R.I. LEXIS 151 (R.I. 2003).

Remarriage of Plaintiff.

In an action by decedent’s widow as the executrix of his estate, who had remarried during the pendency of the action, the court should not require plaintiff to be sworn in her new surname, the name of the action should not be amended to that of her new surname, the fact of her remarriage should not be made known to the jury, but the jury may be advised of the name of the new husband and questioned as to possible relationship or acquaintanceship with him without indicating his identity as the plaintiff’s new husband or in any way disclosing that plaintiff has again married. Wiesel v. Cicerone, 106 R.I. 595 , 261 A.2d 889, 1970 R.I. LEXIS 961 (1970).

Settlement.

Settlement and release by executrix, even without consent of next of kin, bound the next of kin. Parker v. Providence & Stonington Steamboat Co., 17 R.I. 376 , 23 A. 102 (1891).

Staying of Proceedings.
— Action Against Municipality.

Substantial justice would be served by allowing the plaintiff to bring an action within the 40-day notice period in § 45-15-5 (presentment of claim against town) and then by staying upon request by the municipality all proceedings until the 40-day period had expired. This would give the city or the town additional time in which to file an answer to the complaint or to respond to any requests for discovery. In this way the city or the town would avoid any more than minimal expense in responding to the action while considering whether the claim or demand should be paid, and the plaintiff can still fall within the statute of limitations. Bernard v. Alexander, 605 A.2d 484, 1992 R.I. LEXIS 63 (R.I. 1992).

Support Arrearage Exception.

Although the father was not adjudged in contempt for willfully failing to pay child support until after the date of the death of the child, the finding of contempt was clearly proper under the facts of the case, and was sufficient to prevent recovery under this section. Bonney v. Bonney, 695 A.2d 508, 1997 R.I. LEXIS 204 (R.I. 1997).

Time for Commencement of Action.

The time set forth in the first proviso was not extended by the fact that defendant was outside the United States during a part of the period. Tillinghast v. Reed, 70 R.I. 259 , 38 A.2d 782, 1944 R.I. LEXIS 63 (1944).

The existence of different limitation periods for suits for negligence and for wrongful death does not violate the equal protection rights of tort victims who die from their injuries, since there is a clear distinction between the nature of the plaintiffs involved which fully supports the state’s decision to treat the two types of plaintiff differently, i.e., the personal injury plaintiff’s initial need to recover from his injuries and to know the extent of his injuries, the likelihood of the community-disturbing event of death prompting more immediate focus by third parties upon the cause thereof, and the interest of both the survivors and the state in prompt settlement of the affairs of a deceased. Cadieux v. International Tel. & Tel. Corp., 593 F.2d 142, 1979 U.S. App. LEXIS 16752 (1st Cir. 1979).

The time limit in this section is a condition on the existence of a legislatively created cause of action unknown to the common law and therefore not subject to judicial alteration or expansion. Cadieux v. International Tel. & Tel. Corp., 593 F.2d 142, 1979 U.S. App. LEXIS 16752 (1st Cir. 1979).

Whereas the word “accrue” in § 9-1-14 leaves room for judicial interpretation and even innovation as to when the last element of a common-law cause of action comes into being, the directive in §§ 10-7-2 and 10-7-7 that suit must be brought within two years (now three years) of death leaves no such room. Cadieux v. International Tel. & Tel. Corp., 593 F.2d 142, 1979 U.S. App. LEXIS 16752 (1st Cir. 1979).

Federal court declined to apply the so-called “discovery rule,” whereby the statute of limitations would not run until the cause of an injury was discovered, in a wrongful death case. Cadieux v. International Tel. & Tel. Corp., 593 F.2d 142, 1979 U.S. App. LEXIS 16752 (1st Cir. 1979).

The May 12, 1981, amendment to this section (extending the limitation on wrongful death action from two to three years) cannot be applied retroactively. Westfall v. Whittaker, Clark & Daniels, Metropolitan Talc Co., 571 F. Supp. 304, 1983 U.S. Dist. LEXIS 14027 (D.R.I. 1983).

The “discovery” referred to in the 1982 amendment (P.L. 1982, ch. 435, §§ 1, 2) to this section is the discovery of a wrongful act, neglect or default which caused a death, and not the discovery of a particular defendant. Westfall v. Whittaker, Clark & Daniels, Metropolitan Talc Co., 571 F. Supp. 304, 1983 U.S. Dist. LEXIS 14027 (D.R.I. 1983).

The father of a decedent child had a right to bring a wrongful death action between the time of the death of the child and that of appointment of an administratrix and the administratrix could not, upon her appointment, have the action dismissed as prematurely brought. Fulton v. Lavallee, 107 R.I. 154 , 265 A.2d 655, 1970 R.I. LEXIS 752 (1970).

The statutory period for bringing an action pursuant to the Wrongful Death Act is controlled by this section and not by § 9-1-14 and thus an action must be brought within two years (now three years) after death. Nascimento v. Phillips Petroleum Co., 115 R.I. 395 , 346 A.2d 657, 1975 R.I. LEXIS 1162 (1975).

The time set forth in the first proviso was not extended by the fact that the plaintiffs were minors who lost their cause of action by the failure of a responsible adult to take action at the proper time. Short v. Flynn, 118 R.I. 441 , 374 A.2d 787, 1977 R.I. LEXIS 1481 (1977).

In respect to automobile accidents, whether such accidents result in personal injuries or wrongful death, the right of action accrues as of the time of the accident, since the traumatic event is immediately apparent to the participants or their legal representatives. Benner v. J.H. Lynch & Sons, 641 A.2d 332, 1994 R.I. LEXIS 159 (R.I. 1994).

— Date of Discovery.

The trial justice correctly decided that the plaintiffs in a medical malpractice suit should be deemed to have discovered the physician’s malpractice for the purposes of this section at the time they were aware of and contemplated a malpractice action, retained counsel, obtained medical records, and sent records out for expert opinion, and not on the date two years later when they finally obtained expert opinion supportive of their position. Pari v. Corwin, 620 A.2d 86, 1993 R.I. LEXIS 28 (R.I. 1993).

Because the alleged wrongful acts in a wrongful death action were discoverable at the latest on the date on which the administratrix obtained the decedent’s medical records and the conduct attributed to the newly named doctor in the second amended complaint was the same conduct, pled almost word for word, that was alleged against the other defendants in the original complaint, the wrongful death claims against the doctor were time-barred as they were filed more than three years after the statutory period. Parrillo v. R.I. Hosp., 202 A.3d 942, 2019 R.I. LEXIS 35 (R.I. 2019).

— Discovery of Wrongful Act.

The fact that this section states that an action may be commenced within three (3) years of the time that the wrongful act, neglect, or default is discovered does not mean that the statute of limitations doesn’t start running until there is an opinion from an expert that there was negligence. To follow that line of reasoning would extend the statute of limitations indefinitely until someone had a letter saying, “It’s my opinion that there was negligence.” Ashey v. Kupchan, 618 A.2d 1268, 1993 R.I. LEXIS 2 (R.I. 1993).

Where the plaintiffs brought a suit alleging that certain individuals negligently advised and treated their son just prior to his death and that this negligence caused their son’s death, there was nothing undiscoverable about the injury or the negligence. The application of the statute of limitations was a matter of law for the trial justice to determine, and not a question of fact for the jury. Ashey v. Kupchan, 618 A.2d 1268, 1993 R.I. LEXIS 2 (R.I. 1993).

Although the three-year limitation contained in § 9-1-25 continues to apply in actions brought against the state, the discovery rule contained in this section is also applicable to wrongful-death actions brought against the state. Benner v. J.H. Lynch & Sons, 641 A.2d 332, 1994 R.I. LEXIS 159 (R.I. 1994).

The statute of limitations barred the plaintiff’s claim for medical malpractice and the wrongful death of the plaintiffs’ unborn child, filed eight years following the child’s death, although the plaintiffs argued that they had no knowledge of wrongful conduct on the defendant’s part until a newspaper article revealed that the defendant’s medical license had been recently revoked as a result of malpractice in connection with the death of another infant; had the plaintiffs exercised reasonable diligence at the time of their son’s death, any act of alleged negligence on the defendant’s part could have been discovered. Trudeau v. Dupre, 640 A.2d 534, 1994 R.I. LEXIS 126 (R.I. 1994).

— Tolling.

The plaintiff’s claim that the statute of limitations was tolled because, through the filing of the petition for the perpetuation of testimony, the defendant had knowledge of the possibility of a wrongful-death claim being brought against it, was without merit. There is no provision for any type of constructive notice to a defendant for purposes of tolling an applicable statute of limitations. Benner v. J.H. Lynch & Sons, 641 A.2d 332, 1994 R.I. LEXIS 159 (R.I. 1994).

— — Minor as Defendant.

Section 9-1-19 does not toll the statute of limitations for wrongful death actions against minor defendants. Bouchard v. Price, 694 A.2d 670, 1997 R.I. LEXIS 154 (R.I. 1997).

Collateral References.

Action for death of adoptive parent by or for benefit of adopted or equitably adopted child. 94 A.L.R. 1237.

Alien, nonresident, right to maintain action for wrongful death for benefit of. 138 A.L.R. 684.

Capacity of foreign domiciliary, or of ancillary, personal representative to maintain action for death, under statute of forum providing for action by personal representative. 52 A.L.R.2d 1048.

Capacity of local or foreign personal representative to maintain action for death under foreign statute providing for action by personal representative. 52 A.L.R.2d 1016.

Child adopted by another as beneficiary of action or settlement for wrongful death of natural parent. 67 A.L.R.2d 745.

Construction and application of provisions of death statute that makes the question whether action shall be brought by personal representative, or by beneficiary, dependent upon existence or nonexistence of cause of action in estate. 105 A.L.R. 834.

Death action by or in favor of parent against unemancipated child. 62 A.L.R.3d 1299.

Disqualification of beneficiary of preferred class, effect of, upon right to sue in behalf of beneficiary of deferred class. 59 A.L.R. 747.

Effect of existence of nearer related but nondependent member upon right to sue under death statute in behalf of remotely related but dependent member of the same class. 162 A.L.R. 704.

Effect of settlement with and acceptance of release from one wrongful death beneficiary upon liability of tortfeasor to other beneficiaries or decedent’s personal representative. 21 A.L.R.4th 275.

Estoppel to Assert Statute of Limitations or Statute of Repose in Action for Malpractice of Health Care Provider. 45 A.L.R.7th Art. 3 (2019).

For whose benefit a survival action under the Federal Employers’ Liability Act may be prosecuted. 94 A.L.R.2d 910.

Fraudulent concealment of cause of action for wrongful death as affecting period of limitations. 88 A.L.R.4th 851.

Judgment in wrongful death action as res judicata in subsequent action in same jurisdiction for same death under the same statute brought by or for the benefit of statutory beneficiary whose status as such was ignored in the former action. 148 A.L.R. 1346.

Kind of verdict or judgment where administrator or executor, whose decedent was negligently killed, brings an action which combines an action for benefit of estate and another for statutory beneficiaries. 124 A.L.R. 621.

Right of foreign domiciliary, or of ancillary, personal representative to maintain an action for death, under statute of forum which provides that action shall be brought by personal representative. 65 A.L.R. 563, 52 A.L.R.2d 1048.

Right of recovery under wrongful death statute, for benefit of illegitimate child or children of decedent. 72 A.L.R.2d 1235.

Time of bringing action, provision of death statute as to, as condition of right of action or mere statute of limitations. 67 A.L.R. 1070.

10-7-3. Action by beneficiaries.

If there is no executor or administrator, or if, there being one, no action is brought in his or her name within six (6) months after the death, one action may be brought in the names of all the beneficiaries, either by all, or by part stating that they sue for the benefit of all, and stating their respective relations to the deceased; provided, that if all do not bring suit, only those bringing it shall be responsible for costs; but judgment shall be for the benefit of all and shall be entered as several judgments for each in his or her proportion, and executions thereon shall issue in favor of each respectively; provided, further, that if action is brought by the beneficiaries, no action shall thereafter be brought by the executor or administrator. There shall be but one bill of costs in favor of the plaintiffs, which shall enure equally for the benefit of those bringing the suit, and of them only.

History of Section. C.P.A. 1905, § 234; G.L. 1909, ch. 283, § 14; G.L. 1923, ch. 333, § 14; P.L. 1932, ch. 1912, § 1; G.L. 1938, ch. 477, § 1; P.L. 1949, ch. 2332, § 1; G.L. 1956, § 10-7-3 .

NOTES TO DECISIONS

Actions During Initial Six-Month Period.

Executor or administrator has exclusive right to file action within six-month period, providing the beneficiaries have not instituted an action at the time of his appointment. Carpenter v. Rhode Island Co., 36 R.I. 395 , 90 A. 768, 1914 R.I. LEXIS 38 (1914).

Beneficiaries may institute proceeding within six-month period if no executor or administrator has been appointed. Carpenter v. Rhode Island Co., 36 R.I. 395 , 90 A. 768, 1914 R.I. LEXIS 38 (1914).

In a suit filed in behalf of beneficiaries within six-month period, the complaint must allege that no executor or administrator has been appointed. Carpenter v. Rhode Island Co., 36 R.I. 395 , 90 A. 768, 1914 R.I. LEXIS 38 (1914).

This section applied during the interval between the death of a child and the appointment of an administratrix and the administratrix could not upon her appointment have an action brought by the father during such interval dismissed as prematurely brought. Fulton v. Lavallee, 107 R.I. 154 , 265 A.2d 655, 1970 R.I. LEXIS 752 (1970).

Death of Plaintiff.

Where widow suing for herself and as representative of her children dies before judgment, children have a right to continue suit in their names. Walsh v. Bressette, 51 R.I. 354 , 155 A. 1, 1931 R.I. LEXIS 54 (1931).

Duplication of Actions.

Administrator could not bring action after entry of judgment for defendant in action on behalf of next of kin. Lubrano v. Atlantic Mills, 19 R.I. 129 , 32 A. 205, 1895 R.I. LEXIS 53 (1895).

Collateral References.

Adopted child, natural parent’s right to recover for death of. 56 A.L.R. 1349.

Apportionment among beneficiaries of amount awarded by jury or received in settlement on account of wrongful death, as affected by death of distributee after judgment. 14 A.L.R. 538, 112 A.L.R. 30, 171 A.L.R. 204.

Award of custody of child to another as affecting parent’s right to recover for death of minor child. 147 A.L.R. 482.

Beneficiary’s right to bring action under death statute where executor or administrator fails to do so. 101 A.L.R. 840.

Effect of death of beneficiary, following wrongful death, upon damages. 73 A.L.R.4th 441.

Effect of death of beneficiary upon right of action under death statute. 13 A.L.R.4th 1060.

Fraudulent concealment of cause of action for wrongful death as affecting period of limitations. 88 A.L.R.4th 851.

Marriage of child as affecting right of recovery by parents in death action. 7 A.L.R.2d 1370.

Right of action for wrongful death as subject to claims of creditors. 35 A.L.R.2d 1443.

Right of parent who consents to or acquiesces in employment of child under statutory age to recover for latter’s injury or death while in such employment. 23 A.L.R. 635, 40 A.L.R. 1206.

Substitution by amendment of plaintiff in action for wrongful death. 135 A.L.R. 352.

Wife of decedent, right to maintain death action where recovery will be for sole benefit. 96 A.L.R. 479.

10-7-4. Cause surviving death of person liable.

Any cause of action arising under §§ 10-7-1 10-7-4 and any action authorized by this chapter shall survive the death of any person liable for damages under this chapter, and may be originally brought against his or her executor or administrator or, if brought against the liable person in his or her lifetime, may in the event of his or her death be defended by his or her executor or administrator.

History of Section. G.L. 1923, ch. 333, § 14; P.L. 1932, ch. 1912, § 1; G.L. 1938, ch. 477, § 1; P.L. 1949, ch. 2332, § 1; G.L. 1956, § 10-7-4 ; P.L. 1997, ch. 326, § 30.

Collateral References.

Assault, exemplary damages for, affected by death of party assaulted or assailant. 16 A.L.R. 792, 123 A.L.R. 1115.

Survival of action or cause of action for wrongful death against representative of wrongdoer. 61 A.L.R. 830, 171 A.L.R. 1392.

Survival of cause of action for death against tortfeasor killed in the same accident. 70 A.L.R. 1319.

Tortfeasor’s death before death of injured person as precluding action for death. 112 A.L.R. 343.

10-7-5. Liability for medical expense and diminution of earning power.

Whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who, or the corporation which, would have been liable if death had not ensued shall be liable to an action for damages, in addition to the one provided for under §§ 10-7-1 10-7-4 for the hospital, medical, and other expenses incurred, including diminution of earning power until time of death, by or in behalf of the party injured by reason of the wrongful act, neglect or default, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to a felony.

History of Section. G.L. 1923, ch. 477, § 1A; P.L. 1953, ch. 3215, § 1; G.L. 1956, § 10-7-5 .

NOTES TO DECISIONS

In General.

This cause of action has extraterritorial effect. Soares v. McClosky, 466 F. Supp. 703, 1979 U.S. Dist. LEXIS 14392 (E.D. Pa. 1979).

The action for wrongful death under § 10-7-1 and for medical expenses and loss of earning power before death under this section are two independent causes of action and would call for separate judgments. O'Leary v. Bingham, 90 R.I. 441 , 159 A.2d 619, 1960 R.I. LEXIS 46 (1960).

Applicability.

In an action by a Rhode Island estate against a New York estate for medical expense and diminished earning power suffered by the Rhode Island decedent in an automobile collision in Massachusetts, this section rather than Massachusetts law would apply. Tiernan v. Westext Transport, Inc., 295 F. Supp. 1256, 1969 U.S. Dist. LEXIS 8378 (D.R.I. 1969).

This chapter was not applicable to an action by a Rhode Island administratrix against a Massachusetts corporation for the wrongful death of a Rhode Island resident in Massachusetts from negligence alleged to have occurred in Massachusetts. Thayer v. Perini Corp., 303 F. Supp. 683, 1969 U.S. Dist. LEXIS 10587 (D.R.I. 1969).

The personal representative of a decedent may not recover wrongful death or “survival-type” damages when the beneficiary of these damages would be the tortfeasor responsible for the decedent’s death. Aetna Casualty & Sur. Co. v. Curley, 585 A.2d 640, 1991 R.I. LEXIS 13 (R.I. 1991), limited, Commercial Union Ins. Co. v. Pelchat, 727 A.2d 676, 1999 R.I. LEXIS 73 (R.I. 1999).

10-7-6. Executor or administrator to bring § 10-7-5 action — Amount recovered to estate.

Every action under § 10-7-5 shall be brought by and in the name of the executor or administrator of the deceased person, whether appointed or qualified within or without the state, and the amount recovered in every action under § 10-7-5 shall go to the decedent’s estate and become part of the estate.

History of Section. G.L. 1923, ch. 477, § 1A; P.L. 1953, ch. 3215, § 1; G.L. 1956, § 10-7-6 ; P.L. 1997, ch. 326, § 30.

NOTES TO DECISIONS

In General.

Provision of this section providing that amount recovered shall be part of the estate has no application to wrongful death action where recovery of medical expenses, loss of earnings prior to death or other subjects of recovery under § 10-7-5 was not sought. O'Leary v. Bingham, 90 R.I. 441 , 159 A.2d 619, 1960 R.I. LEXIS 46 (1960).

Conflict of Laws.

In evaluating the distribution of settlement proceeds in a motorist fatality case, a federal court sitting in Pennsylvania applied Rhode Island law because the issue concerned the decedent’s Rhode Island estate and potential benefits to surviving family members domiciled in Rhode Island, matters in which Rhode Island had a strong interest not shared by Pennsylvania even though the latter was the site of the fatal accident and also of the decedent’s brief employment and temporary residence. Soares v. McClosky, 466 F. Supp. 703, 1979 U.S. Dist. LEXIS 14392 (E.D. Pa. 1979).

Jury Instructions.

Although R.I. Gen. Laws § 10-7-6 specified that actions for survival damages could be maintained only by the executor or administrator of a decedent’s estate, since the wrongful death defendant never challenged the capacity of the decedent’s parents to maintain the action, instructing the jury as to both wrongful death and survival damages was not an abuse of discretion. The defendant did not object to any of the jury instructions as required by R.I. Super. Ct. R. Civ. P. 51 (b). Tyre v. Swain, 946 A.2d 1189, 2008 R.I. LEXIS 57 (R.I. 2008).

10-7-7. Pain and suffering recoverable — Limitation of action.

In an action under § 10-7-5 , recovery may be had for pain and suffering. Except as otherwise provided, every action under § 10-7-5 shall be commenced within three (3) years after the death of the person. With respect to any death caused by any wrongful act, neglect or default which is not known at the time of death, the action shall be commenced within three (3) years of the time that the wrongful act, neglect or default is discovered or, in the exercise of reasonable diligence, should have been discovered.

History of Section. G.L. 1923, ch. 477, § 1A; P.L. 1953, ch. 3215, § 1; G.L. 1956, § 10-7-7 ; P.L. 1972, ch. 246, § 1; P.L. 1981, ch. 101, § 1; P.L. 1982, ch. 435, § 1; P.L. 1984, ch. 237, § 1; P.L. 1997, ch. 326, § 30.

NOTES TO DECISIONS

In General.

The time limit in this section is a condition on the existence of a legislatively created cause of action unknown to the common law and therefore not subject to judicial alteration or expansion. Cadieux v. International Tel. & Tel. Corp., 593 F.2d 142, 1979 U.S. App. LEXIS 16752 (1st Cir. 1979).

Whereas the word “accrue” in § 9-1-14 leaves room for judicial interpretation and even innovation as to when the last element of a common-law cause of action comes into being, the directive in §§ 10-7-2 and 10-7-7 that suit must be brought within two years (now three years) of death leaves no such room. Cadieux v. International Tel. & Tel. Corp., 593 F.2d 142, 1979 U.S. App. LEXIS 16752 (1st Cir. 1979).

1981 Amendment.

The 1981 amendment, which extended the limitation period to three years from the date of death, applies to a cause of action that was not time barred at the time that the new limitation period took effect. Spunt v. Oak Hill Nursing Home, 509 A.2d 463, 1986 R.I. LEXIS 469 (R.I. 1986).

Beneficiaries of Damages.

The personal representative of a decedent may not recover wrongful death or “survival-type” damages when the beneficiary of these damages would be the tortfeasor responsible for the decedent’s death. Aetna Casualty & Sur. Co. v. Curley, 585 A.2d 640, 1991 R.I. LEXIS 13 (R.I. 1991), limited, Commercial Union Ins. Co. v. Pelchat, 727 A.2d 676, 1999 R.I. LEXIS 73 (R.I. 1999).

Pain and Suffering.

Damages cannot be awarded for wounded feelings or bereavement suffered, pain and suffering of deceased, or loss of society. Schnable v. Providence Pub. Mkt., 24 R.I. 477 , 53 A. 634, 1902 R.I. LEXIS 108 (1902), overruled, Dimitri v. Peter Cienci & Son, 41 R.I. 393 , 103 A. 1029, 1918 R.I. LEXIS 59 (1918); McCabe v. Narragansett Elec. Lighting Co., 26 R.I. 427 , 59 A. 112, 1904 R.I. LEXIS 99 (1904).

There can be no recovery for the conscious pain and suffering of the decedent prior to his death in an action for wrongful death under this act. Lopez v. Pan Atlantic, Cia Naviera & Seaboard Shipping Co., 247 F. Supp. 281, 1965 U.S. Dist. LEXIS 7609 (D.R.I. 1965).

Damages for pain and suffering would be recoverable if the wrongful death of the decedent is compensable under the Dram Shop Act, § 3-11-1 (now see chapter 14 of title 3). Beaupre v. Boulevard Billiard Club, 510 A.2d 415, 1986 R.I. LEXIS 478 (R.I. 1986).

Time of Commencement of Action.

The existence of different limitation periods for suits for negligence and for wrongful death does not violate the equal protection rights of tort victims who die from their injuries, since there is a clear distinction between the nature of the plaintiffs involved which fully supports the state’s decision to treat the two types of plaintiff differently, i.e., the personal injury plaintiff’s initial need to recover from his injuries and to know the extent of his injuries, the likelihood of the community-disturbing event of death prompting more immediate focus by third parties upon the cause thereof, and the interest of both the survivors and the state in prompt settlement of the affairs of a deceased. Cadieux v. International Tel. & Tel. Corp., 593 F.2d 142, 1979 U.S. App. LEXIS 16752 (1st Cir. 1979).

Federal court declined to apply the so-called “discovery rule,” whereby the statute of limitations would not run until the cause of an injury was discovered, in a wrongful death case. Cadieux v. International Tel. & Tel. Corp., 593 F.2d 142, 1979 U.S. App. LEXIS 16752 (1st Cir. 1979).

10-7-7.1. Punitive damages.

In an action commenced under § 10-7-5 , recovery may be had for punitive damages if such damages would have been recoverable had the decedent survived.

History of Section. P.L. 2009, ch. 382, § 2.

10-7-8. Cause surviving death of person liable.

Any cause of action arising under §§ 10-7-5 10-7-8 and any action authorized by this chapter shall survive the death of any person liable for damages under the cause of action and may be originally brought against his or her executor or administrator or if brought against the person in his or her lifetime may, in the event of his or her death, be defended by his or her executor or administrator.

History of Section. G.L. 1923, ch. 477, § 1A; P.L. 1953, ch. 3215, § 1; G.L. 1956, § 10-7-8 ; P.L. 1997, ch. 326, § 30.

10-7-9. Criminal proceedings not prerequisite.

In order to maintain any action given in and by this chapter, it shall not be necessary to first institute criminal proceedings against the defendant.

History of Section. C.P.A. 1905, § 235; G.L. 1909, ch. 283, § 15; G.L. 1923, ch. 333, § 15; G.L. 1938, ch. 477, § 2; P.L. 1953, ch. 3215, § 2; G.L. 1956, § 10-7-9 .

NOTES TO DECISIONS

Questioning as to Criminal Proceedings.

Plaintiff’s objection to cross-examination of plaintiff by defendant’s counsel asking whether he knew defendant was tried in a district court was sustained inasmuch as the information sought by defendant was immaterial and irrelevant, criminal proceedings not being a requisite to an action based upon death by wrongful act. Foster v. De Andrade, 88 R.I. 442 , 149 A.2d 713, 1959 R.I. LEXIS 31 (1959).

Where on direct examination defendant was asked by his counsel whether or not he had been charged by the police with speeding in relation to the accident in question wherein administrator’s decedent had met death as a result of injuries sustained when struck by motor vehicle driven by defendant, plaintiff’s objection was sustained in that the information sought to be brought out by the defendant was immaterial and irrelevant. Foster v. De Andrade, 88 R.I. 442 , 149 A.2d 713, 1959 R.I. LEXIS 31 (1959).

10-7-10. Damages not to estate or asset of estate.

All damages recoverable under §§ 10-7-1 10-7-4 and under 10-7-7.1 shall be recoverable by and awarded to those beneficiaries as specified in § 10-7-2 and shall not be deemed or considered damages to the estate of the decedent, nor shall they be considered in any way an asset of the estate of the decedent, nor liable to any claims against the estate of the decedent.

History of Section. P.L. 1971, ch. 46, § 1; P.L. 2009, ch. 382, § 1.

10-7-11. Applicability to pending actions.

The provisions of this chapter shall apply to all actions for death by wrongful act pending on May 26, 1971.

History of Section. P.L. 1971, ch. 46, § 1.

10-7-12. Applicability to actions commenced after passage.

The provisions of this chapter shall also apply to all actions for death by wrongful act commenced after May 26, 1971.

History of Section. P.L. 1971, ch. 46, § 1.

10-7-13. Severability.

If a court of competent jurisdiction shall adjudge to be invalid or unconstitutional any clause, sentence, paragraph, section or part of this chapter, the judgment or decree shall not affect, impair, invalidate or nullify the remainder of this chapter, but the effect of the court’s adjudication shall be confined to the clause, sentence, paragraph, section or part of this chapter so adjudged to be invalid or unconstitutional.

History of Section. P.L. 1971, ch. 46, § 1; P.L. 1997, ch. 326, § 30.

10-7-14. “Homemaker” defined.

A homemaker as used in this chapter is a person who has primary responsibility for the care of a home and family and who receives no direct monetary compensation for their duties.

History of Section. P.L. 1987, ch. 81, § 3.

Chapter 7.1 Libel of a Deceased Person

10-7.1-1. Liability for damages for libel of a deceased person.

Whenever a deceased person shall have been slandered or libelled in an obituary or similar account in any newspaper or on any radio or television station within three (3) months of his or her date of death, and the account would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect to the libel, the person who or corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person.

History of Section. P.L. 1974, ch. 82, § 1.

Collateral References.

Defamation: publication of letter to editor in newspaper as actionable. 54 A.L.R.5th 443.

Free exercise of religion clause of First Amendment as defense to tort liability. 93 A.L.R. Fed. 754.

Libel and slander: charging one with breach or nonperformance of contract. 45 A.L.R.5th 739.

Who is “public official” for purposes of defamation action. 44 A.L.R.5th 193.

10-7.1-2. Action by executor or administrator — Persons benefited — Limitation of action.

Every action under this chapter shall be brought by and in the name of the executor or administrator of the deceased person, whether appointed or qualified within or without the state, and of the amount recovered in every action under this chapter one-half (1/2) shall go to the husband or widow, and one-half (1/2) shall go to the children of the deceased, and if there are no children the whole shall go to the husband or widow, and, if there is no husband or widow, to the next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate. Provided, that every action under this chapter shall be commenced within one year after the death of the person.

History of Section. P.L. 1974, ch. 82, § 1; P.L. 1997, ch. 326, § 31.

10-7.1-3. Action by beneficiaries.

If there is no executor or administrator, or if, there being one, no action is brought in his or her name within six (6) months after the death, one action may be brought in the names of all the beneficiaries, either by all, or by part stating that they sue for the benefit of all, and stating their respective relations to the deceased; provided, that if all do not bring suit, only those bringing it shall be responsible for costs; but judgment shall be for the benefit of all and shall be entered as several judgments for each in his or her proportion as aforesaid, and executions thereon shall issue in favor of each respectively: provided, further, that if action be brought by the beneficiaries, no action shall thereafter be brought by the executor or administrator. There shall be but one bill of costs in favor of the plaintiffs, which shall enure equally for the benefit of those bringing the suit, and of them only.

History of Section. P.L. 1974, ch. 82, § 1.

10-7.1-4. Cause surviving death of person liable.

Any cause of action arising under §§ 10-7.1-1 10-7.1-4 and any action authorized by this chapter shall survive the death of any person liable for damages under this chapter, and may be originally brought against his or her executor or administrator or, if brought against the person in his or her lifetime, may in the event of his or her death be defended by his or her executor or administrator.

History of Section. P.L. 1974, ch. 82, § 1; P.L. 1997, ch. 326, § 31.

10-7.1-5. Damages not to estate or asset of estate.

All damages recoverable under §§ 10-7.1-1 10-7.1-4 shall be recoverable by and awarded to those beneficiaries as specified in § 10-7.1-2 and shall not be deemed or considered damages to the estate of the decedent, nor shall they be considered in any way an asset of the estate of the decedent, nor liable to any claims against the estate of the decedent.

History of Section. P.L. 1974, ch. 82, § 1.

Chapter 8 Distress Warrants

10-8-1. Procedure as in attachment.

In case any officer shall distrain for taxes, or by any warrant of distress whatsoever, the goods and chattels of any person, he or she shall proceed in the same manner and be held to the same rules as directed in case of attachments in civil actions.

History of Section. C.P.A. 1905, § 558; G.L. 1909, ch. 300, § 40; G.L. 1923, ch. 350, § 40; G.L. 1938, ch. 531, § 1; G.L. 1956, § 10-8-1 .

Cross References.

Assignment for benefit of creditors, effect, § 10-4-6 .

Attachments in civil actions, § 10-5-1 et seq.

Employment security contributions, § 28-43-20 et seq.

Fines levied against jurors, warrant, § 9-10-11 .

Property exempt from attachment, §§ 9-26-4 , 9-26-5 .

Tax collections by distress, § 44-8-1 et seq.

Temporary disability insurance contributions, § 28-40-14 et seq.

Chapter 9 Habeas Corpus

10-9-1. General right to writ.

Every person imprisoned in any correctional institution or otherwise restrained of his or her liberty, other than persons imprisoned or restrained pursuant to a final judgment entered in a criminal proceeding, may prosecute a writ of habeas corpus, according to the provisions of this chapter, to obtain relief from the imprisonment or restraint, if it shall prove to be unlawful.

History of Section. C.P.A. 1905, § 652; G.L. 1909, ch. 305, § 1; G.L. 1923, ch. 356, § 1; G.L. 1938, ch. 584, § 1; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-9-1 ; P.L. 1974, ch. 220, § 1.

Rules of Court.

Habeas corpus, Sup. Ct. Rules, Article I, Rule 14.

Rules inapplicable, see Super. Ct. R. Civ. P. Rule 81.

Cross References.

Extradition proceedings, § 12-9-12 .

Post conviction remedy, § 10-9.1-1 et seq.

Suspension of writ, R.I. Const., art. I, § 9 .

Comparative Legislation.

Habeas corpus:

Conn. Gen. Stat. § 52-466 et seq.

Mass. Ann. Laws ch. 248, § 1 et seq.

NOTES TO DECISIONS

In General.

Action was improperly denominated a habeas corpus proceeding where relief sought was an injunction against further interference with wife’s right to visit relatives rather than a release from unlawful detention. Granger v. Johnson, 117 R.I. 440 , 367 A.2d 1062, 1977 R.I. LEXIS 1709 (1977).

This chapter, in speaking of “any writ of habeas corpus,” is referring to the Great Writ or writ of habeas corpus ad subjiciendum. Therefore, a writ of habeas corpus ad testificandum does not come within the reach of this chapter. State v. Grieco, 430 A.2d 412, 1981 R.I. LEXIS 1150 (R.I. 1981).

Availability of Writ.

Inmate’s appeal of a judgment denying him a writ of habeas corpus could not be considered because the inmate had been imprisoned as a result of a final judgment of conviction so that habeas corpus was not available to him and because the appeal was untimely under R.I. Sup. Ct. art. I, R. 4(a) having been filed 22 days after the trial court entered the judgment. DiLibero v. State, 996 A.2d 599, 2010 R.I. LEXIS 72 (R.I. 2010).

Nature of Custody.

The provisions of this section are of sufficient latitude to enable a person restrained by reason of commitment to the custody of a probation officer to prosecute a writ of habeas corpus to terminate that restraint if unlawfully imposed. Noble v. Siwicki, 97 R.I. 288 , 197 A.2d 298, 1964 R.I. LEXIS 77 (1964).

One who is admitted to bail after the filing of his application for a writ of habeas corpus is still in constructive custody and, therefore, entitled to a writ of habeas corpus if such custody is unlawful. Lemme v. Langlois, 104 R.I. 352 , 244 A.2d 271, 1968 R.I. LEXIS 654 (1968).

Res Judicata.

The doctrine of res judicata is inapplicable to habeas corpus proceedings; the issuance of the writ is within the discretion of the court. State v. Berberian, 118 R.I. 413 , 374 A.2d 778, 1977 R.I. LEXIS 1478 (1977).

Time of Application.

A writ of habeas corpus was denied by the supreme court where the petitioner had filed an intention to prosecute a bill of exceptions and the time as extended for presenting the transcript and bill of exceptions for allowance had not yet expired. Johnson v. Langlois, 101 R.I. 178 , 221 A.2d 466, 1966 R.I. LEXIS 371 (1966).

Collateral References.

Absence of counsel for accused at time of sentence as requiring vacation thereof or other relief.

Appeal from conviction, power to grant writ of habeas corpus pending. 52 A.L.R. 876.

Assistance of counsel, habeas corpus for violation of accused’s right to, as affected by other remedies. 146 A.L.R. 374.

Attack, by petition for writ of habeas corpus, on personal service as having been obtained by fraud or trickery. 98 A.L.R.2d 551.

Attorney, habeas corpus as remedy for infringement of right of accused to communicate with. 5 A.L.R.3d 1360.

Availability of habeas corpus as affected by federal statute dealing with vacation, by direct attack, of sentence in criminal case on ground that it violated Constitution or laws, or exceeded jurisdiction, or is otherwise subject to collateral attack. 20 A.L.R.2d 976.

Change of judicial decision as ground of habeas corpus for release of one held upon previous conviction. 136 A.L.R. 1032.

Conviction of offense other than that charged in indictment or information, habeas corpus as remedy. 154 A.L.R. 1135.

Defective title to office of judge, prosecuting attorney, or other officer participating in petitioner’s trial or confinement as ground for habeas corpus. 158 A.L.R. 529.

Determination, in extradition proceedings, or on habeas corpus in such proceedings, whether a crime is charged. 40 A.L.R.2d 1151.

Disqualification of judge who presided at trial, or of juror, as ground of habeas corpus. 124 A.L.R. 1079.

Existence of other remedy as affecting habeas corpus on ground of restoration to sanity of one confined as an incompetent other than in connection with crime. 21 A.L.R.2d 1004.

Fine and imprisonment, habeas corpus in case of sentence which is excessive because imposing both. 49 A.L.R. 494.

Former jeopardy as ground for habeas corpus. 8 A.L.R.2d 285.

Former jeopardy, overruling plea of, as reviewable on habeas corpus. 8 A.L.R.2d 285.

Habeas corpus as available remedy for release of one committed to institution as consequence of acquittal of crime on ground of insanity. 95 A.L.R.2d 54.

Habeas corpus as remedy for delay in bringing accused to trial or to retrial after reversal. 58 A.L.R. 1512.

Habeas corpus on ground of denial of right to counsel in relation to right to appeal. 19 A.L.R.2d 789.

Habeas corpus on ground of deprivation of right to appeal. 19 A.L.R.2d 789.

Habeas corpus on ground of deprivation of right to appeal in immigration, exclusion, and similar cases. 19 A.L.R.2d 789.

Habeas corpus proceedings to obtain custody of illegitimate child. 98 A.L.R.2d 417.

Habeas corpus to review commitment for contempt for failure to obey court order or decree either beyond power or jurisdiction of court or merely erroneous. 12 A.L.R.2d 1059.

Habeas corpus to test constitutionality of ordinance under which petitioner is held. 32 A.L.R. 1054.

Habeas corpus to test validity of confinement under statutes relating to sexual psychopaths. 24 A.L.R.2d 350.

Illegal or erroneous sentence as ground for habeas corpus. 76 A.L.R. 468.

Insanity of accused at time of commission of offense (not raised at trial) as ground for habeas corpus after conviction. 29 A.L.R.2d 703.

Insanity of one convicted of crime, habeas corpus as remedy in case of. 121 A.L.R. 270.

Invalidity of prior conviction or sentence as ground of habeas corpus where one is sentenced as second offender. 171 A.L.R. 541.

Jurisdiction of habeas corpus proceedings for custody of child having legal domicile in another state. 4 A.L.R.2d 7.

Jury list, habeas corpus as remedy for exclusion of eligible class or classes of persons from. 52 A.L.R. 927.

Mistreatment of prisoner lawfully in custody as ground for habeas corpus. 155 A.L.R. 145.

Modern status of rule relating to jurisdiction of state court to try criminal defendant brought within jurisdiction illegally or as result of fraud or mistake. 25 A.L.R.4th 157.

Nonresidence as affecting one’s right to custody of child in habeas corpus proceeding. 15 A.L.R.2d 432.

Pending suit for annulment, divorce or separation as affecting remedy by habeas corpus for custody of child. 82 A.L.R. 1146.

Plea of guilty, failure to examine witnesses to determine degree of guilt before pronouncing sentence upon. 134 A.L.R. 968.

Prohibition against contempt proceedings, other remedy by habeas corpus as adequate or inadequate for purposes of. 136 A.L.R. 731.

Relief available for violation of right to counsel at sentencing in state criminal trial. 65 A.L.R.4th 183.

Review by federal civil courts of court-martial convictions - Modern status. 95 A.L.R. Fed. 472.

Review by habeas corpus of court martial proceedings.

Right of one detained pursuant to quarantine to habeas corpus. 2 A.L.R. 1542.

Right of prisoner held under extradition warrant to raise question of identity in habeas corpus proceeding. 93 A.L.R.2d 912.

Statutory remedy as exclusive of remedy by habeas corpus otherwise available. 73 A.L.R. 567.

Sufficiency of indictment or information as regards the offense sought to be charged, habeas corpus to test. 57 A.L.R. 85.

Voluntary absence when sentence is pronounced. 59 A.L.R.5th 135.

Waiver or loss of accused’s right to speedy trial as affecting right to habeas corpus. 57 A.L.R.2d 302.

When is a person in custody of governmental authorities for purpose of exercise of state remedy of habeas corpus — modern cases. 26 A.L.R.4th 455.

Who, other than natural or adopting parents, or heirs of latter, may bring habeas corpus attacking adoption decree. 92 A.L.R.2d 813.

Withholding or suppression of evidence by prosecution in criminal case as vitiating conviction. 34 A.L.R.3d 16.

10-9-2. Repealed.

History of Section. C.P.A. 1905, § 653; G.L. 1909, ch. 305, § 2; G.L. 1923, ch. 356, § 2; G.L. 1938, ch. 584, § 2; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-9-2 ; Repealed by P.L. 1974, ch. 220, § 2.

Compiler’s Notes.

Former § 10-9-2 concerned persons not entitled to writ.

10-9-3. Application for writ — Contents.

Application for such a writ shall be made to the supreme or superior or family court, or to any justice of those courts, by complaint in writing, signed by the party for whose relief it is intended, or by some person in his or her behalf, setting forth:

  1. The person by whom and the place where the party is imprisoned or restrained, naming the prisoner and the person detaining him or her if their names are known, and describing them if they are not known.
  2. The cause or pretense of the imprisonment or restraint, according to the knowledge and belief of the person applying. If the imprisonment or restraint is by virtue of any warrant or other process a copy thereof shall be annexed or it shall be made to appear that a copy thereof has been demanded and refused, or that for some sufficient reason a demand of a copy could not be made. The facts set forth in the complaint shall be verified by the oath of the person making the application or by that of some other credible witness, which oath may be administered by the court or justice to whom the application is made, or by any justice of the peace or notary public.

History of Section. C.P.A. 1905, § 654; G.L. 1909, ch. 305, § 3; G.L. 1923, ch. 356, § 3; G.L. 1938, ch. 584, § 3; G.L. 1956, § 10-9-3 ; P.L. 1988, ch. 103, § 1.

Cross References.

District court writs, § 8-8-4 .

Probate court writs, § 8-9-21 .

Superior court jurisdiction, § 8-2-16 .

Supreme court power, § 8-1-2 .

NOTES TO DECISIONS

Appeal From Denial.

When superior court has heard and denied a petition for writ of habeas corpus, the decision of superior court justice is final and no appeal lies to supreme court, however, such denial does not preclude petitioner from filing a petition in supreme court on the same set of facts. Charest v. Howard, 109 R.I. 360 , 285 A.2d 381, 1972 R.I. LEXIS 1194 (1972).

Copy of Process.

Petition did not comply with the statute where no copy of the process under which the prisoner was restrained was annexed to or presented with the petition. In re Bonn, 17 R.I. 572 , 23 A. 1017, 1892 R.I. LEXIS 35 (1892).

In an application for a writ of habeas corpus petitioner’s failure to comply with the provisions of this section in that it was not accompanied by a copy of the mittimus or a statement that same could not be obtained was not fatal as strict compliance with such statutory requirements are not binding on the supreme court. Lonardo v. Langlois, 98 R.I. 493 , 205 A.2d 19, 1964 R.I. LEXIS 202 (1964).

Court Where Filed.

Petitioner had not exhausted his state remedies where petition to supreme court was left with chief justice but not formally filed or record made thereof. Ex parte Grotta, 113 F. Supp. 574, 1953 U.S. Dist. LEXIS 2623 (D.R.I. 1953).

In an application for a writ of habeas corpus, whenever an evidentiary hearing would be required, the application should be made to the superior court as the supreme court is so set up as to be at a disadvantage, whenever the taking of testimony is an integral part of the proceedings. Lonardo v. Langlois, 98 R.I. 493 , 205 A.2d 19, 1964 R.I. LEXIS 202 (1964).

Remand.

Although habeas corpus proceedings in the supreme court are de novo rather than by writ of review of the superior court, where the taking of testimony is an integral part of the proceedings it is proper for the supreme court to remand the cause to the superior court for the necessary exercise of the fact-finding power. Baker v. Laurie, 118 R.I. 539 , 375 A.2d 405, 1977 R.I. LEXIS 1496 (1977).

Signature.

A party signing a petition on behalf of another need not have the other’s specific authorization to do so, if the exigencies which require the next friend to sign also militate against procuring the detained person’s permission, and if the applicant has a legitimate interest in the matter. Granger v. Johnson, 117 R.I. 440 , 367 A.2d 1062, 1977 R.I. LEXIS 1709 (1977).

10-9-4. Issuance of writ — Forms.

  1. The court or justice to whom the complaint shall be made shall, without delay, award and issue a writ of habeas corpus; if against any sheriff or deputy sheriff of this state, or against the warden of any correctional institution in this state, or against any marshal or deputy marshal of the United States, it shall be substantially in the following form:

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  2. And if not against an officer as described in subsection (a), it shall be substantially in the following form:

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The State of Rhode Island. SC. (SEAL) To Greeting: We command you, that the body of of , in your custody (or, by you imprisoned or restrained of his or her liberty, as the case may be), as it is said, together with the day and cause of his or her taking and detaining by whatsoever name the said shall be called or charged, you have before our supreme (or superior as the case may be) court, held at immediately after the receipt of this writ, to do and receive what our court shall then and there consider concerning him or her in this behalf, and have there this writ. Witness, the seal of the court at this day of , in the year . Or, witness my hand this day of in the year . Justice of the court.

The State of Rhode Island. SC. To the sheriffs of our several counties and their deputies, (SEAL) Greeting: We command you, that the body of of by of imprisoned or restrained of his or her liberty, as it is said, you take and have before our supreme (or superior, as the case may be) court, held at immediately after the receipt of this writ, to do and receive whatever the court shall then consider concerning him or her in this behalf, and summon the said then and there to appear before our said court to show the cause of the taking and detaining of the said and have you there this writ with your doings thereon. Witness, the seal of the court at this day of in the year . , Clerk. Or, witness my hand this day of in the year . Justice of the court.

History of Section. C.P.A. 1905, § 655; G.L. 1909, ch. 305, § 4; G.L. 1923, ch. 356, § 4; G.L. 1938, ch. 584, § 4; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-9-4 ; P.L. 1974, ch. 220, § 1; P.L. 1997, ch. 326, § 169; P.L. 2021, ch. 77, § 9, effective June 23, 2021; P.L. 2021, ch. 78, § 9, effective June 23, 2021.

Compiler’s Notes.

P.L. 2021, ch. 77, § 9, and P.L. 2021, ch. 78, § 9 enacted identical amendments to this section.

10-9-5. Court to which writ returnable.

Any justice issuing a writ under this chapter shall make the writ returnable to the court of which he or she is a justice.

History of Section. C.P.A. 1905, § 656; G.L. 1909, ch. 305, § 5; G.L. 1923, ch. 356, § 5; G.L. 1938, ch. 584, § 5; G.L. 1956, § 10-9-5 ; P.L. 1997, ch. 326, § 169.

10-9-6. Return to Providence superior court when other courts not in session.

If the writ is returnable to the supreme court and the court is not in session upon the return of the writ, it shall be returned to, and action on the writ be had by the superior court at Providence. If returnable to the superior court for either Newport, Kent, or Washington county, and the court is not in session upon its return, it shall be returned to the superior court at Providence.

History of Section. C.P.A. 1905, § 657; G.L. 1909, ch. 305, § 6; G.L. 1923, ch. 356, § 6; G.L. 1938, ch. 584, § 6; G.L. 1956, § 10-9-6 .

10-9-7. Receipt and return of writ.

Any person to whom the writ is directed shall receive it, and upon payment or tender of charges, if any be demandable for the execution of it, he or she shall make due return of the writ.

History of Section. C.P.A. 1905, ch. 658; G.L. 1909, ch. 305, § 7; G.L. 1923, ch. 356, § 7; G.L. 1938, ch. 584, § 7; G.L. 1956, § 10-9-7 .

Cross References.

Sheriff’s fees, § 12-20-3 .

NOTES TO DECISIONS

Form of Return.

Orderly procedure on habeas corpus proceedings requires a return by the person having custody of the petitioner, such return being a response to the writ itself and not an amendment to the petition. Kimball v. Pelosi, 96 R.I. 429 , 192 A.2d 267, 1963 R.I. LEXIS 103 (1963).

Where deprived of the required pleadings, the supreme court may, in the interests of a final disposition, treat respondent’s memorandum and oral statement together as a return, and the petitioner’s oral argument as an appropriate pleading in response thereto. Kimball v. Pelosi, 96 R.I. 429 , 192 A.2d 267, 1963 R.I. LEXIS 103 (1963).

Scope of Writ.

The function of habeas corpus is to provide a means for the discharge of persons who are unlawfully restrained and a method whereby the legality of the detention of one detained by another can be officially determined. Kimball v. Pelosi, 96 R.I. 429 , 192 A.2d 267, 1963 R.I. LEXIS 103 (1963).

10-9-8. Return or statement by person to whom writ directed.

The person to whom the writ is directed shall state in his or her return on the writ:

  1. Whether he or she has or has not the party in his or her custody or power or under restraint;
  2. If he or she has the party in his or her custody or power or under restraint, he or she shall set forth at large the authority, and the true and whole cause of the imprisonment or restraint, with a copy of the writ, warrant, or other process, if any, upon which the party is detained; and
  3. If he or she has had the party in his or her custody or power or under restraint and has transferred custody or restraint to another, he or she shall state particularly to whom, at what time, for what cause, and by what authority the transfer was made.

History of Section. C.P.A. 1905, § 659; G.L. 1909, ch. 305, § 8; G.L. 1923, ch. 356, § 8; G.L. 1938, ch. 584, § 8; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-9-8 ; P.L. 1974, ch. 220, § 1.

10-9-9. Signature and oath to return or statement.

The return or statement shall be signed by the person making it, and it shall also be sworn to by him or her, unless he or she be a sworn public officer and shall make the return in his or her official capacity.

History of Section. C.P.A. 1905, § 660; G.L. 1909, ch. 305, § 9; G.L. 1923, ch. 356, § 9; G.L. 1938, ch. 584, § 9; G.L. 1956, § 10-9-9 .

10-9-10. Body brought with return or statement.

The person who makes the return or statement shall, at the same time, bring the body of the party, if in his or her custody or power or under his or her restraint, according to the command of the writ, unless prevented by the sickness or infirmity of the party.

History of Section. C.P.A. 1905, § 661; G.L. 1909, ch. 305, § 10; G.L. 1923, ch. 356, § 10; G.L. 1938, ch. 584, § 10; G.L. 1956, § 10-9-10 .

10-9-11. Illness of person confined.

Whenever, from the sickness or infirmity of the party, he or she cannot, without danger, be brought to the place appointed for the return of the writ, that fact shall be stated in the return, and if it is proved to the satisfaction of the court, the court may proceed to the institution or other place where the party is confined and there make the examination, or may adjourn the court to another time or may make such other order in the case as law and justice shall require.

History of Section. C.P.A. 1905, § 662; G.L. 1909, ch. 305, § 11; G.L. 1923, ch. 356, § 11; G.L. 1938, ch. 584, § 11; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-9-11 .

10-9-12. Remand, bail, or commitment pending judgment.

Until judgment is given, the court may remand the party, or may bail him or her to appear from day to day, or may commit him or her to a member of the division of sheriffs, or place him or her under such other care and custody as the circumstances of the case may require.

History of Section. C.P.A. 1905, § 671; G.L. 1909, ch. 305, § 20; G.L. 1923, ch. 356, § 20; G.L. 1938, ch. 584, § 20; G.L. 1956, § 10-9-12 ; P.L. 2012, ch. 324, § 24.

10-9-13. Failure of officer to deliver copy of process by which prisoner held.

Every officer who shall refuse or neglect, for six (6) hours, to deliver a true copy of the warrant or process, by which he or she detains any prisoner, to any person who shall demand such copy and tender the fees therefor, shall forfeit and pay to the prisoner the sum of one hundred dollars ($100).

History of Section. C.P.A. 1905, § 672; G.L. 1909, ch. 305, § 21; G.L. 1923, ch. 356, § 21; G.L. 1938, ch. 584, § 21; G.L. 1956, § 10-9-13 .

10-9-14. Examination of cause of restraint — Adjournment.

When the writ of habeas corpus is returned, the court shall, without delay, proceed to examine the causes of the imprisonment or restraint, but the examination may be adjourned from time to time, as circumstances may require.

History of Section. C.P.A. 1905, § 663; G.L. 1909, ch. 305, § 12; G.L. 1923, ch. 356, § 12; G.L. 1938, ch. 584, § 12; G.L. 1956, § 10-9-14 .

10-9-15. Notice to party on whose process restraint based.

Whenever it appears, from the return of the writ, or otherwise, that the party is detained on any process under which any other person has an interest in continuing his or her imprisonment or restraint, the party shall not be discharged until sufficient notice shall have been given to the interested person or his or her attorney, if within the state or within thirty (30) miles of the place of examination, to appear and object to the discharge, if he or she think fit, which notice shall be given by the party imprisoned, in the manner prescribed by the court, or, in default thereof, he or she shall be remanded to the custody of the person against whom the writ of habeas corpus issued.

History of Section. C.P.A. 1905, § 664; G.L. 1909, ch. 305, § 13; G.L. 1923, ch. 356, § 13; G.L. 1938, ch. 584, § 13; G.L. 1956, § 10-9-15 ; P.L. 1997, ch. 326, § 75.

10-9-16. Notice to attorney general or complainant in criminal cases.

Whenever it appears from the return of the writ, or otherwise, that the party is imprisoned on any criminal accusation, he or she shall not be discharged until sufficient notice shall have been given to the attorney general, or to the complainant in the matter, that he or she may appear and object to the discharge, if he or she think fit, which notice shall be given by the party imprisoned, in the manner prescribed by the court, or, in default thereof, he or she shall be remanded to the custody of the person against whom the writ of habeas corpus issued.

History of Section. C.P.A. 1905, § 665; G.L. 1909, ch. 305, § 14; G.L. 1923, ch. 356, § 14; G.L. 1938, ch. 584, § 14; G.L. 1956, § 10-9-16 .

10-9-17. Denial of facts in return or statement — Hearing of evidence.

The party imprisoned or restrained may deny any of the facts set forth in the return or statement and may allege any other facts that may be material in the case, and the court shall proceed in a summary way to examine the causes of imprisonment or restraint and to hear the evidence that may be produced by any person interested and authorized to appear, both in support of the imprisonment or restraint and against it, and thereupon to dispose of the party as law and justice shall require.

History of Section. C.P.A. 1905, § 666; G.L. 1909, ch. 305, § 15; G.L. 1923, ch. 356, § 15; G.L. 1938, ch. 584, § 15; G.L. 1956, § 10-9-17 .

NOTES TO DECISIONS

Appropriate Pleadings.

In habeas corpus proceedings, after the filing of the return the petitioner has the opportunity to raise issues of fact or law thereon by appropriate pleadings. Kimball v. Pelosi, 96 R.I. 429 , 192 A.2d 267, 1963 R.I. LEXIS 103 (1963).

Where deprived of the required pleadings in a habeas corpus proceeding, the supreme court may, in the interests of a final disposition, treat respondent’s memorandum and oral statement together as a return, and the petitioner’s oral argument as an appropriate pleading in response thereto. Kimball v. Pelosi, 96 R.I. 429 , 192 A.2d 267, 1963 R.I. LEXIS 103 (1963).

Scope of Proceeding.

The function of habeas corpus is to provide a means for the discharge of persons who are unlawfully restrained and a method whereby the legality of the detention of one detained by another can be officially determined. Kimball v. Pelosi, 96 R.I. 429 , 192 A.2d 267, 1963 R.I. LEXIS 103 (1963).

Collateral References.

Alibi or absence from demanding state, right to prove. 51 A.L.R. 797, 61 A.L.R. 715.

Assistance of counsel, burden of proof as to denial of, on habeas corpus. 146 A.L.R. 413.

Bar of limitations as proper subject of investigation in habeas corpus proceedings for release of one sought to be extradited. 77 A.L.R. 902.

Charge of crime, determination of sufficiency of. 81 A.L.R. 552, 40 A.L.R.2d 1151.

Custody of child, power of court in habeas corpus proceedings relating to, to adjudicate amount which shall be paid for child’s support or to modify agreement in that regard. 17 A.L.R.3d 764.

Delay, right to, of one arrested on extradition warrant, to enable him to present evidence that he is not subject to extradition. 11 A.L.R. 1410.

Demanding papers in extradition proceedings as making out prima facie case in habeas corpus proceedings that accused was present in demanding state at time of commission of alleged crime or that he is a fugitive. 135 A.L.R. 973.

Disposition of habeas corpus on ground of deprivation of right to appeal. 19 A.L.R.2d 789.

Divorce suit, jurisdiction of court in, to award custody of child as affected by orders in proceedings in habeas corpus for custody of child. 110 A.L.R. 745.

Extradition proceedings, statements in demanding papers in, as making out prima facie case in habeas corpus proceedings on issues of presence of accused in demanding state at time of commission of alleged crime or whether he is a fugitive. 135 A.L.R. 973.

Motive or ulterior purpose of officials demanding or granting extradition as proper subject of inquiry on habeas corpus. 94 A.L.R. 1496.

Participation in suit by one not a party of record or privy to a party, rule of conclusiveness based on, as applied in action involving custody of children. 139 A.L.R. 72.

Right to aid of counsel in application or hearing for habeas corpus. 162 A.L.R. 922.

10-9-18. Discharge on failure to show cause for restraint.

If no legal cause be shown for the imprisonment or restraint, the court shall discharge the party therefrom.

History of Section. C.P.A. 1905, § 667; G.L. 1909, ch. 305, § 16; G.L. 1923, ch. 356, § 16; G.L. 1938, ch. 584, § 16; G.L. 1956, § 10-9-18 .

NOTES TO DECISIONS

Effect of 12-13-7 .

In habeas corpus proceeding court could order release of person accused of murder but held without trial longer than the period provided by § 12-13-7 . Ex parte Deslovers, 35 R.I. 256 , 86 A. 657 (1913).

Discharge of prisoner accused of murder because not tried within period prescribed by § 12-13-7 did not prevent subsequent indictment and conviction for same crime. State v. Deslovers, 40 R.I. 89 , 100 A. 64, 1917 R.I. LEXIS 15 (1917).

Collateral References.

Appeal from conviction, right to, as affected by discharge on habeas corpus. 18 A.L.R. 873, 74 A.L.R. 638.

Federal courts, discharge on habeas corpus in, from custody under process of state court for acts done under federal authority. 65 A.L.R. 733.

Limitations, right to discharge on ground that prosecution was barred by, where defendant had pleaded guilty after statute had run. 37 A.L.R. 1116.

10-9-19. Admission to bail.

If the party is detained for any cause or offense for which he or she is bailable of right, he or she shall be admitted to bail if sufficient bail be offered, and if not, he or she shall be remanded with an order of the court expressing the sum in which he or she shall be held to bail, and the court at which he or she shall be required to appear, and any person authorized thereto may, at any time before the sitting of the court, bail the party pursuant to the order.

History of Section. C.P.A. 1905, § 688; G.L. 1909, ch. 305, § 17; G.L. 1923, ch. 356, § 17; G.L. 1938, ch. 584, § 17; G.L. 1956, § 10-9-19 .

10-9-20. Order as to bail when person held on civil mesne process.

If the party is committed on mesne process in any civil action for want of bail and if it shall appear that the sum for which bail is required is excessive and unreasonable, the court shall decide what bail is reasonable and shall order that on giving reasonable bail the party shall be discharged.

History of Section. C.P.A. 1905, § 669; G.L. 1909, ch. 305, § 18; G.L. 1923, ch. 356, § 18; G.L. 1938, ch. 584, § 18; G.L. 1956, § 10-9-20 .

10-9-21. Remand to custody.

If the party is lawfully imprisoned or restrained and is not entitled to be enlarged on giving bail, he or she shall be remanded to the person from whose custody he or she was taken or to such other person or officer as is by law authorized to detain him or her.

History of Section. C.P.A. 1905, § 670; G.L. 1909, ch. 305, § 19; G.L. 1923, ch. 356, § 19; G.L. 1938, ch. 584, § 19; G.L. 1956, § 10-9-21 .

10-9-22. Appeals and exceptions barred — Subsequent application to supreme court allowed.

No appeal or exception shall lie to the judgment of the superior court in habeas corpus; but if the superior court shall remand the person imprisoned or restrained, the superior court’s judgment shall not bar an application to the supreme court, or a justice thereof, for another writ upon the same facts.

History of Section. C.P.A. 1905, § 670; G.L. 1909, ch. 305, § 19; G.L. 1923, ch. 356, § 19; G.L. 1938, ch. 584, § 19; G.L. 1956, § 10-9-22 .

NOTES TO DECISIONS

Appeal.

A denial of a petition by the superior court is final and no appeal lies therefrom to the supreme court, either by direct appeal or indirectly by means of certiorari. Lee v. Gough, 84 R.I. 358 , 124 A.2d 549, 1956 R.I. LEXIS 75 (1956).

When superior court has heard and denied a petition for writ of habeas corpus, the decision of superior court justice is final and no appeal lies to supreme court, however, such denial does not preclude petitioner from filing a petition in supreme court on the same set of facts. Charest v. Howard, 109 R.I. 360 , 285 A.2d 381, 1972 R.I. LEXIS 1194 (1972).

This section allows no appeal from a superior court judgment in habeas corpus. State v. Palmigiano, 115 R.I. 166 , 341 A.2d 742, 1975 R.I. LEXIS 1138 (1975).

Bail.

The court felt that the petitioner would have been better advised to have appealed from the fixing of the bail in the first instance by way of certiorari. A determination that the amount of bail imposed was excessive could have been remanded to the superior court with direction to correct the same in accordance with the opinion of the supreme court. Benoit v. Langlois, 96 R.I. 129 , 189 A.2d 805, 1963 R.I. LEXIS 59 (1963).

While in the supreme court’s judgment there is merit in petitioner’s contention that, under all the circumstances, he having tried to escape from an adult correctional institution after having as a youth been incarcerated for an offense of nonviolent nature, he being a lifelong resident of the state, the sum of $20,000 was excessive, the court was not prepared to agree that the sum of $2,500 suggested by him would reasonably tend to guarantee his presence on demand. Benoit v. Langlois, 96 R.I. 129 , 189 A.2d 805, 1963 R.I. LEXIS 59 (1963).

Collateral References.

Denial of relief to prisoner on habeas corpus as bar to second application. 161 A.L.R. 1331.

10-9-23. Enforcement of writ by attachment as for contempt.

If any person to whom a writ of habeas corpus shall be directed shall refuse to receive the writ or shall neglect to obey and execute it according to the provisions of this chapter and no sufficient excuse shall be shown for his or her refusal or neglect, the court before which the writ is returnable shall proceed immediately, by process of attachment as for a contempt, to compel obedience to the writ and to punish the person guilty of the contempt.

History of Section. C.P.A. 1905, § 673; G.L. 1909, ch. 305, § 22; G.L. 1923, ch. 356, § 22; G.L. 1938, ch. 584, § 22; G.L. 1956, § 10-9-23 .

Collateral References.

Contempt in disobeying writ as affected by lack of jurisdiction to issue it. 84 A.L.R. 816.

10-9-24. Attachment and commitment of a member of the division of sheriffs.

If an attachment shall be issued against any deputy sheriff, it may be directed to the commissioner of public safety and the superintendent of the Rhode Island state police, who shall have full power to execute the attachment; and if the deputy sheriff or deputy should be committed upon such process, he or she may be committed to the adult correctional institutions.

History of Section. C.P.A. 1905, § 674; G.L. 1909, ch. 305, § 23; G.L. 1923, ch. 356, § 23; G.L. 1938, ch. 584, § 23; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-9-24 ; P.L. 2012, ch. 324, § 24.

10-9-25. Forfeiture for failure to receive and execute writ.

Every person guilty of such a refusal or neglect to receive and execute a writ of habeas corpus shall also forfeit and pay to the party aggrieved by the refusal or neglect one thousand dollars ($1,000).

History of Section. C.P.A. 1905, § 676; G.L. 1909, ch. 305, § 25; G.L. 1923, ch. 356, § 25; G.L. 1938, ch. 584, § 25; G.L. 1956, § 10-9-25 .

10-9-26. Precept after disobedience of writ.

Upon the refusal or neglect of the person to whom the writ of habeas corpus is directed, the court may also issue a precept to any officer, or other person designated in the writ, commanding him or her to bring immediately before the court the person for whose benefit the writ of habeas corpus was issued, and the prisoner shall be thereupon discharged, bailed or remanded, in like manner as if he or she had been brought in upon the writ of habeas corpus.

History of Section. C.P.A. 1905, § 675; G.L. 1909, ch. 305, § 24; G.L. 1923, ch. 356, § 24; G.L. 1938, ch. 584, § 24; G.L. 1956, § 10-9-26 .

10-9-27. Transfer or concealment of prisoner with intent to avoid writ.

Every person who shall have in custody or under his or her power any person entitled to any writ of habeas corpus, whether any writ has issued or not, and who shall, with intent to elude the service of a writ of habeas corpus or to avoid the effect of a writ of habeas corpus, transfer the prisoner to the custody, or place him or her under the power or control, of any other person, or conceal him or her, or change the place of his or her confinement, shall forfeit and pay to the party aggrieved thereby one thousand dollars ($1,000).

History of Section. C.P.A. 1905, § 677; G.L. 1909, ch. 305, § 26; G.L. 1923, ch. 356, § 26; G.L. 1938, ch. 584, § 26; G.L. 1956, § 10-9-27 .

10-9-28. Common law remedies not barred by penalties.

The recovery of any penalty imposed by this chapter shall not bar any action at the common law for false imprisonment, or for false return to the writ of habeas corpus, or for any other injury or damage sustained by the aggrieved party.

History of Section. C.P.A. 1905, ch. 678; G.L. 1909, ch. 305, § 27; G.L. 1923, ch. 356, § 27; G.L. 1938, ch. 584, § 27; G.L. 1956, § 10-9-28 .

10-9-29. Rearrest of discharged person.

No person who has been discharged upon a writ of habeas corpus shall be again imprisoned or restrained for the same cause, unless he or she is indicted or charged by information therefor or convicted thereof, or committed for want of bail, by some court of record having jurisdiction of the cause, or unless, after a discharge for defect of proof or for some material in the commitment in a criminal case, he or she shall be again arrested on sufficient proof, and committed by legal process, for the same offense.

History of Section. C.P.A. 1905, § 679; G.L. 1909, ch. 305, § 28; G.L. 1923, ch. 356, § 28; G.L. 1938, ch. 584, § 28; G.L. 1956, § 10-9-29 ; P.L. 1974, ch. 118, § 2.

NOTES TO DECISIONS

Detention Unlawful.

Where the defendant was discharged from detention on a charge of murder in the first degree by a writ of habeas corpus but was imprisoned pursuant to a sentence imposed under the original indictment after a plea of nolo contendere to a charge of murder in the second degree, the detention was unlawful. Gavin v. Langlois, 92 R.I. 203 , 167 A.2d 747, 1961 R.I. LEXIS 17 (1961).

Res Judicata.

Discharge of prisoner accused of murder because not tried within period prescribed by § 12-13-7 did not prevent subsequent indictment and conviction for same crime where the first indictment had been nolle prossed. State v. Deslovers, 40 R.I. 89 , 100 A. 64, 1917 R.I. LEXIS 15 (1917).

A discharge by habeas corpus vitiates the process pursuant to which the detention was effected, but such discharge is not res judicata of the issue of the defendant’s guilt of the offense with which he was charged. Gavin v. Langlois, 92 R.I. 203 , 167 A.2d 747, 1961 R.I. LEXIS 17 (1961).

A discharge from custody upon a writ of habeas corpus precludes any further detention or imprisonment under the same process or in the same proceeding but such discharge does not bar a subsequent prosecution with consequent arrest and detention in a new proceeding or under new process. Gavin v. Langlois, 92 R.I. 203 , 167 A.2d 747, 1961 R.I. LEXIS 17 (1961).

Collateral References.

Arresting one who has been discharged on habeas corpus. 62 A.L.R. 465.

Discharge on habeas corpus of one held in extradition proceedings as precluding subsequent extradition proceedings. 33 A.L.R.3d 1443.

10-9-30. Judicial powers not restrained.

Nothing contained in this chapter shall be so construed as to restrain the power of the supreme or superior court, or any one of the justices thereof, to issue a writ of habeas corpus at their discretion, and thereupon to bail any person for whatsoever cause he or she may be committed or restrained, or to discharge him or her, as law and justice shall require.

History of Section. C.P.A. 1905, § 680; G.L. 1909, ch. 305, § 29; G.L. 1923, ch. 356, § 29; G.L. 1938, ch. 584, § 29; G.L. 1956, § 10-9-30 .

10-9-31. Power of justices to admit to bail.

Whenever any person is committed to a correctional institution on any criminal accusation for want of bail, any justice of the supreme or superior court, or any person specially appointed by either of the courts, may admit him or her to bail in like manner as might have been done by the court or magistrate who committed him or her, and the supreme or superior court justices respectively shall have power to issue a writ of habeas corpus and to cause the prisoner to be brought before them, whenever it shall be necessary for the purpose expressed in this section.

History of Section. C.P.A. 1905, § 681; G.L. 1909, ch. 305, § 30; G.L. 1923, ch. 356, § 30; G.L. 1938, ch. 584, § 30; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-9-31 .

NOTES TO DECISIONS

Effect on Recognizances.

This section did not limit the power of judges of the district court under §§ 12-13-1 and 12-13-4 to accept recognizances for release of prisoners. Ex parte Quigg, 34 R.I. 504 , 84 A. 859, 1912 R.I. LEXIS 77 (1912).

10-9-32. Judicial power to bring in criminal defendants and witnesses.

Nothing contained in this chapter shall be so construed as to restrain the power of any court to issue a writ of habeas corpus, whenever necessary to bring before them any prisoner for trial, in any criminal case lawfully pending in the same court, or to bring in any prisoner to be examined as a witness in any suit or proceeding, civil or criminal, pending in the court, whenever they shall think the personal attendance and examination of the witness necessary for the attainment of justice.

History of Section. C.P.A. 1905, § 682; G.L. 1909, ch. 305, § 31; G.L. 1923, ch. 356, § 31; G.L. 1938, ch. 584, § 31; G.L. 1956, § 10-9-32 .

Chapter 9.1 Post Conviction Remedy

10-9.1-1. Remedy — To whom available — Conditions.

  1. Any person who has been convicted of, or sentenced for, a crime, a violation of law, or a violation of probationary or deferred sentence status and who claims:
    1. That the conviction or the sentence was in violation of the constitution of the United States or the constitution or laws of this state;
    2. That the court was without jurisdiction to impose sentence;
    3. That the sentence exceeds the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law;
    4. That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
    5. That his or her sentence has expired, his or her probation, parole, or conditional release unlawfully revoked, or he or she is otherwise unlawfully held in custody or other restraint; or
    6. That the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy;

      may institute, without paying a filing fee, a proceeding under this chapter to secure relief.

  2. This remedy is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or of direct review of the sentence or conviction. Except as otherwise provided in this chapter, it comprehends and takes the place of all other common law, statutory, or other remedies heretofore available for challenging the validity of the conviction or sentence. It shall be used exclusively in place of them.

History of Section. P.L. 1974, ch. 220, § 3.

Law Reviews.

Reversal of Fortunato: Textualism Un-Dunn in State v. Dunn , see 3 R.W.U.L. Rev. 253 (1998).

2002 Survey of Rhode Island Law, see 8 Roger Williams U.L. Rev. 421 (2003).

2005 Survey of Rhode Island Law: Criminal Procedure: Raso v. Wall, 884 A.2d 391 (R.I. 2005), see 11 Roger Williams U. L. Rev. 853 (2006).

Comparative Legislation.

Post conviction remedy:

Mass. Ann. Laws ch. 278, § 33H.

NOTES TO DECISIONS

In General.

This chapter’s substitution of one remedy for another is a change of procedure only, not in substance. Palmigiano v. Mullen, 119 R.I. 363 , 377 A.2d 242, 1977 R.I. LEXIS 1909 (1977); State v. Duggan, 414 A.2d 788, 1980 R.I. LEXIS 1637 (R.I. 1980); State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

This statute now provides the exclusive remedy to be utilized for appropriate collateral attack upon a criminal conviction on any ground of alleged error heretofore available under common-law statutory post-conviction remedies. Mastracchio v. Houle, 416 A.2d 116, 1980 R.I. LEXIS 1654 (R.I. 1980).

In this jurisdiction applications for post-conviction relief are civil in nature. Waz v. Estate of Judge, 417 A.2d 326, 1980 R.I. LEXIS 1727 (R.I. 1980).

Because defendant’s sentence was neither illegal nor unconstitutional, a hearing justice erred in ordering resentencing when it granted defendant’s application for postconviction relief pursuant to R.I. Gen. Laws § 10-9.1-1(a)(1) . Pelletier v. State, 882 A.2d 567, 2005 R.I. LEXIS 168 (R.I. 2005).

Petitioner’s claim that the postconviction justice failed to follow procedure set forth in Shatney v. State, 755 A.2d 130 (R.I. 2000), before permitting his counsel to withdraw lacked merit; the petitioner was permitted to submit to the court two pro se memoranda to supplement the application for postconviction relief and the petitioner was given an opportunity to speak on his own behalf at all three hearings. Thornton v. State, 948 A.2d 312, 2008 R.I. LEXIS 71 (R.I. 2008).

Hearing justice properly denied defendant’s application for postconviction relief although the State wrongfully failed to disclose under R.I. Super. Ct. R. Crim. P. 16 the uncharged crimes of a witness. There was no reasonable probability that, had the evidence been properly disclosed, the result of the trial would have been different because it could not have escaped the jury’s attention that the witness had an extensive criminal background, that the witness had decided to testify against members of organized crime, that the witness was recently such a member himself, and that the witness hoped to receive protection and avoid incarceration in exchange for his testimony. DeCiantis v. State, 24 A.3d 557, 2011 R.I. LEXIS 114 (R.I. 2011).

Superior court did not err in denying an applicant’s petition for postconviction relief because the evidence the State presented at trial was sufficient to convict the applicant; the hearing justice repeatedly made reference to the overwhelming evidence of the applicant’s guilt and, in particular, to the three separate witnesses to the crime that sufficiently identified him as the perpetrator. Spratt v. State, 41 A.3d 984, 2012 R.I. LEXIS 45 (R.I. 2012).

Superior court did not err in denying an applicant’s petition for postconviction relief because the applicant failed to show that any discovery violation under R.I. Super. Ct. R. Crim. P. 16 (a)(4) occurred since there was no error in the hearing justice’s determination that the witness’s identification of the applicant was not based on any identification from a photograph but was based on the witness having seen the crime; because of the abundant evidence of the applicant’s guilt, even if the State produced his arrest photographs during trial, such production would not have avoided his conviction. Spratt v. State, 41 A.3d 984, 2012 R.I. LEXIS 45 (R.I. 2012).

Evidentiary hearing is required in the first application for postconviction relief in all cases involving applicants sentenced to life without the possibility of parole. Tassone v. State, 42 A.3d 1277, 2012 R.I. LEXIS 65 (R.I. 2012), limited, Ricci v. State, 196 A.3d 292, 2018 R.I. LEXIS 115 (R.I. 2018).

Defendant’s second R.I. Gen. Laws § 10-9.1-1 application for postconviction relief was properly denied because a hearing justice did not err in allowing defendant to proceed pro se pursuant to defendant’s own motion, defendant was provided with the requisite process that was due in the context of a parole board hearing, and defendant’s claims of actual innocence and juror misconduct were barred by the doctrine of res judicata. Higham v. State, 45 A.3d 1180, 2012 R.I. LEXIS 100 (R.I. 2012).

Adverse Inference.

Denial of an applicant’s post-conviction application based on ineffective assistance of counsel was proper where the hearing justice was not required to draw an adverse inference against the State due to its failure to call the applicant’s attorney to testify at the post-conviction hearing since the attorney was equally accessible to both parties, and the applicant bore the burden of proof. Jolly v. Wall, 59 A.3d 133, 2013 R.I. LEXIS 25 (R.I. 2013).

Bail.

In enacting the post-conviction remedy the legislature sought to provide a scheme for collateral attack of final conviction. The legislation will not fail in its essential purpose if the supreme court does not infer a bail or recognizance provision from the chapter. State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

Bail pending appeal of an unsuccessful collateral attack on a final conviction should be granted only in exceptional cases. State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

The supreme court requires an applicant who requests bail to show that incarceration pending review of his application for post-conviction relief would be manifestly unjust. State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

An applicant who seeks release pending appellate review of an application for post-conviction relief should move the supreme court to admit him to bail. State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

For purposes of granting bail, the supreme court shall treat an appeal from a denial of an application for post-conviction relief as equivalent to a denial of a writ of habeas corpus following a final conviction. Thus, the court’s inherent power to grant bail pending review of a habeas challenge to a final conviction is incorporated in a review of the merits of an application for post-conviction relief. State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

Competency of Counsel.

The correct procedure for raising a Sixth Amendment challenge to the competency of counsel is through the provisions of the Post Conviction Remedy Act rather than by appeal. State v. Freitas, 121 R.I. 412 , 399 A.2d 1217, 1979 R.I. LEXIS 1793 (1979); State v. Gibbons, 418 A.2d 830, 1980 R.I. LEXIS 1732 (R.I. 1980).

Supreme Court will not review claims of lack of effective assistance of counsel on appeal unless they are founded upon specific trial court rulings, however, such issue may be raised in a more appropriate form of a post-conviction proceeding. State v. Roderick, 121 R.I. 896 , 403 A.2d 1090, 1979 R.I. LEXIS 2037 (1979).

Since the trial justice correctly found that defendant had failed to prove ineffective assistance of counsel and either judicial or prosecutorial misconduct, the defendant’s application for postconviction relief was properly denied. Dordain v. Vose, 655 A.2d 1100, 1995 R.I. LEXIS 61 (R.I. 1995).

The Supreme Court will not consider ineffective-assistance-of-counsel claims on direct appeal. Such issues are considered only in an application for postconviction relief. State v. Heath, 665 A.2d 1336, 1995 R.I. LEXIS 241 (R.I. 1995); State v. Malstrom, 672 A.2d 448, 1996 R.I. LEXIS 62 (R.I. 1996).

Rhode Island Supreme Court will not consider a claim of ineffectiveness of counsel that is raised for the first time on a direct appeal; such matters must be pursued in an application for post-conviction relief pursuant to R.I. Gen. Laws § 10-9.1-1 . State v. Grayhurst, 852 A.2d 491, 2004 R.I. LEXIS 143 (R.I. 2004).

Trial court properly dismissed a prisoner’s petition for post-conviction relief pursuant to R.I. Gen. Laws § 10-9.1-1(a)(1) challenging his child molestation convictions; the prisoner did not receive ineffective assistance of counsel as guaranteed by R.I. Const. art. I, § 10 , as evidence of the victim’s contradictory statements was entered into evidence without calling two witnesses. Young v. State, 877 A.2d 625, 2005 R.I. LEXIS 135 (R.I. 2005).

Because counsel’s decision not to subpoena certain medical records was a tactical decision made after what appeared to have been thoughtful consideration, the trial court properly denied defendant’s application for postconviction relief based on ineffective assistance of counsel. Lyons v. State, 880 A.2d 839, 2005 R.I. LEXIS 174 (R.I. 2005).

Applicant in a postconviction relief proceeding under R.I. Gen. Laws § 10-9.1-1 did not show that trial counsel was ineffective, pursuant to U.S. Const. amend. VI and R.I. Const. art. I, § 10 , for: (1) failing to request a self-defense or accident jury instruction; (2) failing to conduct a proper pretrial investigation; or (3) substantially interfering with the applicant’s right to testify when counsel informed the applicant that she would not participate in the applicant committing perjury. Larngar v. Wall, 918 A.2d 850, 2007 R.I. LEXIS 37 (R.I. 2007), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Because defendant pointed to no authority for the proposition that counsel’s failure to file a timely R.I. Super. Ct. R. Crim. P. 35 motion to reduce defendant’s sentence amounted to constitutionally deficient representation, and because there was an obvious tactical reason for the omission, the trial court properly denied defendant’s R.I. Gen. Laws § 10-9.1-1 motion. Burke v. State, 925 A.2d 890, 2007 R.I. LEXIS 70 (R.I. 2007), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Application for postconviction relief, under R.I. Gen. Laws § 10-9.1-1 , was properly denied because the applicant’s claim of ineffective assistance of counsel was without merit where: (1) there was an eminently rational basis for concluding that the applicant understood the consequences of pleading guilty and that he did not do so under force or coercion because the applicant stated, under oath, that he had discussed the agreement with his attorney prior to entering his plea and that he had no difficultly understanding the implications of his guilty plea; (2) the applicant’s attorney conducted an extensive investigation of the case and interviewed several relevant witnesses; (3) the attorney met with the applicant approximately fifteen times in person, and the two conferred numerous times by telephone and by exchange of written correspondence; and (4) in view of the evidence that the State had presented and in view of the real possibility that his client might receive the harshest possible penalty permitted under Rhode Island law, the attorney’s advice to his client that he plead to a negotiated sentence was well within the acceptable range of competence. Gonder v. State, 935 A.2d 82, 2007 R.I. LEXIS 110 (R.I. 2007).

Defendant was not entitled to relief on claim that he received ineffective assistance of counsel at trial on drug charges. Although defendant claimed that he should have called as a witness a man who executed an affidavit purportedly exculpating defendant, or at least presented the testimony of that man from a prior hearing, the man’s lack of credibility and prior criminal history meant that the decision not to do so was a sound tactical decision. Rodriguez v. State, 941 A.2d 158, 2008 R.I. LEXIS 9 (R.I. 2008).

Because defendant had not provided a single argument on the issues to support the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and no such prejudice was obvious from the record, the denial of the application for postconviction relief is affirmed under R.I. Gen. Laws § 10-9.1-1(a)(1) . Chalk v. State, 949 A.2d 395, 2008 R.I. LEXIS 76 (R.I. 2008), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

When analyzing counsel’s performance under the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), defendant did not meet his burden of proving that counsel’s performance was deficient. Therefore, in a R.I. Gen. Laws § 10-9.1-1(a)(1) motion for postconviction relief, there was no need to address whether counsel’s representation was deficient in the context of U.S. Const. amend. VI and R.I. Const. art. 1, § 10 . Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Postconviction applicant failed to present sufficient evidence to support the hearing justice’s finding that the applicant’s counsel was ineffective in his representation of the applicant to the extent required to meet the threshold established in Strickland. Even if counsel’s performance was seriously lacking, his shortcomings, whether reviewed individually or collectively, did not prejudice the defense. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Trial court properly denied defendant’s post-conviction petition as defendant had failed to overcome the strong presumption that his counsel’s performance was reasonably professional, in that counsel testified that he first learned of the traffic stop, which would provide an alibi for defendant in his murder case, just before trial, two years into his representation of defendant, and that, because no detail surrounding the stop were provided and because defendant had waited so long to provide him with this information, counsel refrained from pursuing an investigation and from seeking a continuance. The ever-shifting nature of defendant’s story served to confirm the hearing justice’s conclusion that the information about the traffic stop was withheld and disclosed only when defendant thought he could safely do so and discredited the testimony of defendant and his wife that they discussed the stop with the attorney in the early stages of his representation. Hazard v. State, 968 A.2d 886, 2009 R.I. LEXIS 39 (R.I. 2009).

In petitioner inmate’s postconviction relief application pursuant to R.I. Gen. Laws § 10-9.1-1(a)(1) , where trial counsel’s testimony was deemed more credible than that of the inmate, the claim that counsel failed to investigate, file pretrial motions, or prepare for trial lacked merit; the evidence supported counsel’s claim that he was not provided with the names of any witnesses to investigate, such that there was no ineffectiveness of counsel shown in violation of U.S. Const. amend. VI. Neufville v. State, 13 A.3d 607, 2011 R.I. LEXIS 13 (R.I. 2011).

Petitioner inmate’s claim of ineffectiveness of counsel lacked merit in his postconviction relief petition pursuant to R.I. Gen. Laws § 10-9.1-1 where he failed to show that if counsel had cross-examined a resident physician who had examined the victim of the inmate’s sexual offenses, the outcome of the trial would have been different; the victim’s testimony was deemed credible and sufficient to support the inmate’s conviction. Lynch v. State, 13 A.3d 603, 2011 R.I. LEXIS 12 (R.I. 2011).

Inmate was not entiteld to postconviction relief based on the alleged ineffective assistance of counsel, because the testimony of trial counsel at evidentiary hearing indicated that his decisions were indeed tactical and not unreasonable in light of the circumstances; among other things, counsel had a sound basis for the decision not to use a physician’s opinion, namely that the physician essentially agreed with the State’s witness and trial counsel’s use of a nurse practitioner and the Department of Children, Youth, and Families worker as defense witnesses to shed light on prior inconsistent out-of-court statements by the victim did not rise the level of ineffective assistance, notwithstanding the resulting corroborative testimony from both witnesses achieved by the State of cross-examination. Rice v. State, 38 A.3d 9, 2012 R.I. LEXIS 22 (R.I. 2012).

Superior court did not err in denying an applicant’s petition for postconviction relief because the applicant did not receive ineffective assistance of counsel due to trial counsel’s failure to uncover the State’s alleged misconduct with respect to a witness’s testimony; no R.I. Super. Ct. R. Crim. P. 16 or Brady violation occurred in regard to arrest photographs, and the hearing justice repeatedly made note of trial counsel’s effectiveness. Spratt v. State, 41 A.3d 984, 2012 R.I. LEXIS 45 (R.I. 2012).

Superior court did not err in denying an applicant’s petition for postconviction relief because the applicant did not receive ineffective assistance of counsel due to trial counsel’s failure to elicit evidence suggesting that the police later found the gun used as the murder weapon in the hands of another criminal; there was no evidence of any misconduct by the State for trial counsel to “uncover,” and trial counsel’s failure to present evidence of the whereabouts of the gun months after the crime did not prejudice the applicant because there was no reasonable probability that the jury would have returned with a different verdict. Spratt v. State, 41 A.3d 984, 2012 R.I. LEXIS 45 (R.I. 2012).

Postconviction relief applicant argued that his trial counsel was ineffective for not interviewing a eyewitness; as the postconviction court found that the witness’s testimony would not likely have changed the outcome of the trial, the applicant failed to prove to a reasonable probability that he was prejudiced by his counsel’s purported deficiencies. Barbosa v. State, 44 A.3d 142, 2012 R.I. LEXIS 69 (R.I. 2012).

Denial of postconviction relief was affirmed because trial counsel was not ineffective because he adequately warned the prisoner of the immigration consequences of his plea. Trial counsel testified as to the plethora of times that he had discussed “at some length” with the prisoner that, if he pled nolo contendere, he would be deported. Guerrero v. State, 47 A.3d 289, 2012 R.I. LEXIS 121 (R.I. 2012).

Defendant’s application for postconviction relief was properly denied because defendant’s attorneys were not ineffective on the ground that they represented defendant while laboring under a conflict of interest; their prior representation of an acquaintance who was with defendant on the night of the murder had concluded long before defendant’s trial, in excess of a year. Rivera v. State, 58 A.3d 171, 2013 R.I. LEXIS 8 (R.I. 2013).

Denial of an applicant’s post-conviction application was proper where trial counsel did not render ineffective assistance of counsel by pressuring an applicant to enter a nolo contendere plea to second-degree child molestation as the applicant faced the possibility of a life sentence if convicted on the first-degree child molestation charge, and the applicant’s motion to suppress had been denied; the claim that the applicant’s attorney advised the applicant to lie about his medications was discredited. Jolly v. Wall, 59 A.3d 133, 2013 R.I. LEXIS 25 (R.I. 2013).

While trial counsel’s conduct in disclosing the inmate’s psychiatric records to the prosecutor fell below an objective standard of reasonableness, trial counsel’s deficient performance was not so deficient as to have prejudiced the inmate and deprived him of a fair trial. Even if the challenged testimony had been excluded, there was an abundance of other compelling evidence, including the testimony of the victim, of the inmate’s guilt that was sufficient for the jury to convict him beyond a reasonable doubt. Hazard v. State, 64 A.3d 749, 2013 R.I. LEXIS 70 (R.I. 2013).

Although the advice that a post-conviction relief applicant claimed to have been given, that his probation could be revoked based on conduct that predated the probation, would amount to a legal impossibility, and therefore was clearly deficient, the trial court properly found that the applicant did not receive that advice from his attorney. State v. Gonzalez, 84 A.3d 1164, 2014 R.I. LEXIS 19 (R.I. 2014).

Trial court did not err in denying an applicant’s petition for postconviction relief because the applicant was not denied his constitutional right to effective assistance of counsel; trial counsel performed at a high level. Merida v. State, 93 A.3d 545, 2014 R.I. LEXIS 106 (R.I. 2014).

Applicant, who appealed from a judgment denying his petition for postconviction relief, never made a showing that his trial counsel’s representation fell below an objective standard of reasonableness as required to satisfy the first prong of the Strickland standard. Lamoureux v. State, 93 A.3d 958, 2014 R.I. LEXIS 108 (R.I. 2014).

Postconviction relief was properly denied, as trial counsel’s failure to raise a novel issue did not render his performance deficient and trial counsel was not deficient for stipulating to the inmate’s prior convictions in the presence of the jury, as it may have been sound trial strategy for defense counsel to stipulate rather than risk that the graphic details of the offenses might be presented to the jury. Snell v. State, 126 A.3d 463, 2015 R.I. LEXIS 109 (R.I. 2015).

Superior court properly denied defendant’s application for postconviction relief, premised on ineffective assistance of counsel based on defendant’s plea of nolo contendere, because the State was always willing to go forward on the two counts of first-degree sexual assault but it was only at the urging of defendant through counsel that the superior court urged the State to dismiss those counts; thus, defendant had an almost insurmountable burden to establish prejudice because his counsel had secured a much shorter sentence than what he could have received if he had gone to trial on all four counts. Abdoulie Njie v. State, 156 A.3d 429, 2017 R.I. LEXIS 40 (R.I. 2017).

Any failure by applicant’s attorney to further investigate the merits of one charge had no bearing on the probation violation case because ample evidence showed applicant was in violation of the terms of his probation, and it did not help him that his attorney might have failed to communicate an offer of nine years because he ultimately received that shorter sentence; any allegedly deficient performance by applicant’s attorney was not so prejudicial as to have amounted to a deprivation of applicant’s right to a fair trial. Gomes v. State, 161 A.3d 511, 2017 R.I. LEXIS 80 (R.I. 2017).

Description by petitioner’s postconviction relief counsel of his belief as to his role in the case led to the inevitable conclusion that he was not acting as a zealous advocate, despite the meticulous nature of his work. Therefore, petitioner was not afforded a full, fair, and counseled opportunity to present his claims, before the hearing justice determined them to be meritless Hernandez v. State, 196 A.3d 286, 2018 R.I. LEXIS 116 (R.I. 2018).

Since there was sufficient evidence to convict the inmate under an aiding and abetting theory, the hearing justice erred when she held that trial counsel rendered ineffective assistance by failing to propose a jury instruction or challenge the sufficiency of the evidence with respect to the aiding and abetting theory and the grant of postconviction relief was erroneous. A jury certainly could have found, and did find, that the defendant brought a gun to the scene of the crime Whitaker v. State, 199 A.3d 1021, 2019 R.I. LEXIS 15 (R.I. 2019).

Credibility of Witnesses.

In application for post-conviction relief it was for the trial justice, in passing on a motion for new trial, to exercise his independent judgment as to the credibility of witnesses. State v. Ouimette, 115 R.I. 476 , 348 A.2d 366, 1975 R.I. LEXIS 1173 (1975).

The defendant’s application for post-conviction relief was properly denied since the defendant’s plea of nolo contendere was knowingly and voluntarily made and any “secret agreement” depended on the credibility of the witnesses, who proved not credible at the post-conviction relief hearing. Pezzucco v. State, 652 A.2d 977, 1995 R.I. LEXIS 11 (R.I. 1995).

Petitioner inmate’s claim of prosecutorial misconduct lacked merit in his postconviction relief petition pursuant to R.I. Gen. Laws § 10-9.1-1 where, even if the victim of his sexual offenses had rehearsed her testimony with prosecutors, such was not error where there was not a scintilla of evidence presented that the witness was coached to testify untruthfully or that the State engaged in misconduct; moreover, the victim’s testimony was deemed credible. Lynch v. State, 13 A.3d 603, 2011 R.I. LEXIS 12 (R.I. 2011).

Superior court did not err in denying an applicant’s petition for postconviction relief because the applicant did not meet his burden of showing sufficient evidence of the State’s coercion of a witness; the record was devoid of any support for the applicant’s contention that the police took additional profile photographs of him, showed them to the witness, and after the witness was still unable to identify the applicant, coerced the witness into denying at trial that he was shown the additional profile photographs. Spratt v. State, 41 A.3d 984, 2012 R.I. LEXIS 45 (R.I. 2012).

Superior court did not wrongfully dismiss a postconviction relief applicant’s claim that a courthouse identification of him by a witness was improperly orchestrated by the State; there was no evidence that police or prosecutors planned the encounter between the applicant and the witness in the hallway of the courthouse, and the trial court fund that the encounter was totally accidental and without any orchestration by the State. Spratt v. State, 41 A.3d 984, 2012 R.I. LEXIS 45 (R.I. 2012).

Direct Review.

A petitioner seeking postconviction relief must first satisfy the court that direct review of the issues presented in his application was not available to him. State v. Duggan, 414 A.2d 788, 1980 R.I. LEXIS 1637 (R.I. 1980).

Issue of validity of arrest warrant could not have been resolved on direct appeal where the petitioner did not challenge the validity of the warrant at trial and the case did not raise novel constitutional claims that were unappreciated by counsel at trial; and therefore withdrawal of petitioner’s appeal did not preclude postconviction review of the warrant. State v. Duggan, 414 A.2d 788, 1980 R.I. LEXIS 1637 (R.I. 1980).

Although under certain limited circumstances, a defendant may seek post-conviction review of alleged errors of basic constitutional proportions even though such issues were available for direct review, where the only issue of constitutional dimensions was the claim that the trial justice violated defendant’s right under sixth and fourteenth amendments of the United States Constitution to cross-examine witnesses effectively by unduly restricting cross-examination of the victim, such a claim did not involve novel constitutional issues that could not have been appreciated by counsel at the time the direct appeal was brought, but rather involved well-settled constitutional principles. State v. Carvalho, 450 A.2d 1102, 1982 R.I. LEXIS 981 (R.I. 1982).

Post-conviction relief under § 10-9.1-1 was properly denied to an applicant who was a resident alien, not a citizen of the country, who claimed that the trial court in his criminal trial had erred in not telling him of his right to additional time to consider his nolo contendere plea and that the plea forms he signed should have contained the statutory warnings from R.I. Gen. Laws § 12-12-22(b) of the possible immigration consequences of his plea. The trial court in his criminal trial advised him when he entered his plea that if he was a resident alien, any sentence imposed could have resulted in deportation proceedings over which that court had not control and that as a result of the pleas and sentences, he could be deported, denied citizenship, or denied the right to re-enter this country; the statute did not require that such warnings had to appear on the plea forms. Dossantos v. State, 897 A.2d 39, 2006 R.I. LEXIS 73 (R.I. 2006).

Due Process.

Defendant’s R.I. Gen. Laws § 10-9.1-1 application for postconviction relief was properly denied because defendant was provided with the precise proceeding that defendant had requested—to forgo oral argument and proceed on the papers duly submitted— and defendant received all the process that was due. Sifuentes v. State, 43 A.3d 49, 2012 R.I. LEXIS 58 (R.I. 2012).

Duration of Sentence.

Where defendant served time on an invalid conviction he did not thereby establish a line of credit available for application against a valid sentence subsequently imposed for an unrelated offense; however, defendant was entitled to have an opportunity to inform the sentencing justice of his prior illegal incarceration so that it could be taken into consideration in the pronouncement of sentence. State v. Carsetti, 117 R.I. 670 , 370 A.2d 238, 1977 R.I. LEXIS 1737 (1977).

Where defendant was informed by the trial justice that the penalty for robbery ranged from five years to life imprisonment and she received a seven-year sentence upon pleading guilty nolo contendere to charges of robbery and conspiracy to rob, the trial justice’s failure to inform defendant of the penalty for conspiracy to rob did not require that her guilty plea be vacated. State v. Williams, 122 R.I. 32 , 404 A.2d 814, 1979 R.I. LEXIS 2077 (1979).

Rule 80 of the Superior Court Rules of Civil Procedure (review of administrative action) does not provide the proper mode of review of a good-time calculation by the Department of Corrections. Issues regarding the computation of good-time credit should properly be filed as an application for postconviction relief under this section. Leonardo v. Vose, 671 A.2d 1232, 1996 R.I. LEXIS 61 (R.I. 1996).

Supreme Court of Rhode Island adopted the narrow application of proportionality announced by the United States Supreme Court in the Ewing decision, and applied it to claims under both the federal and Rhode Island constitutions by a post-conviction relief petitioner who challenged a sentence to which petitioner had agreed; since the sentence was neither illegal nor grossly disproportionate to petitioner’s offenses, the agreement was enforced. McKinney v. State, 843 A.2d 463, 2004 R.I. LEXIS 30 (R.I. 2004).

Superior court did not err in denying an applicant’s petition for postconviction relief because the trial court did properly invoke the habitual-criminal statute, R.I. Gen. Laws § 12-19-21 , by finding the applicant a habitual criminal; the statute was not intended to only apply to someone with a more extensive criminal record. Spratt v. State, 41 A.3d 984, 2012 R.I. LEXIS 45 (R.I. 2012).

Length of a probationer’s sentence was not miscalculated because the probationer’s credits for good conduct and participation in institutional industries, under R.I. Gen. Laws § 42-56-24 , and for time served awaiting disposition, under R.I. Gen. Laws § 12-19-2(a) , did not entitle the probationer to an acceleration of the end date of the probationer’s probationary term. Rose v. State, 92 A.3d 903, 2014 R.I. LEXIS 20 (R.I. 2014).

Trial court properly denied defendant’s application for postconviction relief because the trial court justice engaged in a detailed plea colloquy, defendant admitted that all facts as presented by the State were true, defendant’s professed ignorance as to the implications of a plea of nolo contendere was belied by his lengthy criminal record and the record evidence, defendant was caught in the act of committing a burglary, and defendant stated that he was satisfied with the representation provided to him by his trial counsel. Lopes v. State, 111 A.3d 344, 2015 R.I. LEXIS 39 (R.I. 2015).

Findings of Fact.

Trial justices’ findings of fact are entitled to great weight and will not be disturbed on a petition for post-conviction relief absent a showing that the trier of fact has misconceived or overlooked material evidence or was otherwise clearly wrong. Doyle v. State, 430 A.2d 416, 1981 R.I. LEXIS 1147 (R.I. 1981).

Although a review of a postconviction appeal challenging the hearing justice’s determination that the defendant’s constitutional right to the effective assistance of counsel had not been violated is conducted de novo, the reviewing court will give appropriate deference to the historical fact findings made by the hearing justice. Simpson v. State, 769 A.2d 1257, 2001 R.I. LEXIS 88 (R.I. 2001).

Instructions.

Post-conviction review of instruction on self-defense was appropriate, even though trial counsel had not objected to the charge, where a basic constitutional right was affected, the instruction had been in full accord with the law then prevailing and the alleged error was not harmless beyond a reasonable doubt. Infantolino v. State, 414 A.2d 793, 1980 R.I. LEXIS 1641 (R.I. 1980).

Newly Discovered Evidence.

Where defendant was incarcerated pursuant to violation of probation, and he believed newly discovered evidence entitled him to a new hearing, he should have made application to the superior court rather than filing a petition for a writ of coram nobis, but the court ignored defendant’s failure to use the appropriate remedy and treated his motions as though they constituted an application for post-conviction relief under this act. State v. Lanoue, 117 R.I. 342 , 366 A.2d 1158, 1976 R.I. LEXIS 1635 (1976).

Newly discovered evidence, if it is to qualify as a basis for recalling the revocation of probationary or deferred sentence status and vacating the imposition of sentence, must not be merely impeaching or cumulative. State v. Lanoue, 117 R.I. 342 , 366 A.2d 1158, 1976 R.I. LEXIS 1635 (1976).

Newly discovered evidence relied upon in an application for post-conviction relief must measure up at least to the standards that govern in the determination of a motion for a new trial based on the same ground. State v. Lanoue, 117 R.I. 342 , 366 A.2d 1158, 1976 R.I. LEXIS 1635 (1976).

Application for post-conviction relief on the ground of newly discovered evidence was denied where applicant hoped to assert the defense of diminished capacity by relying on new scientific knowledge about alcoholism, but could not establish the unavailability of such knowledge at the time of his trial. Danahey v. State, 118 R.I. 268 , 373 A.2d 489, 1977 R.I. LEXIS 1455 (1977).

A defendant is not precluded from asserting a claim based upon newly discovered evidence even under circumstances in which the time for filing a motion for new trial has expired. State v. Bishop, 439 A.2d 255, 1982 R.I. LEXIS 779 (R.I. 1982).

Where a petitioner seeks to introduce evidence that questions the reliability of the scientific evidence offered at trial, but fails to show that the technique he wishes to introduce was unavailable at the time of trial through the exercise of ordinary diligence (even though the technique conceivably could have become more sophisticated since trial), the evidence does not rise to the level of newly discovered evidence that requires a new trial. Jefferson v. State, 472 A.2d 1200, 1984 R.I. LEXIS 461 (R.I. 1984).

Defendant is not barred by reason of his admissions of probation violation and nolo contendere pleas from seeking post-conviction relief on the basis of newly discovered or newly available testimony, and is entitled to an evidentiary hearing. State v. Fontaine, 559 A.2d 622, 1989 R.I. LEXIS 101 (R.I. 1989).

Hearing court abused its discretion by failing to hold an evidentiary hearing on an application for postconviction relief based on newly discovered evidence; furthermore, the newly discovered evidence was merely cumulative, impeaching, and immaterial and it would not have changed the outcome of the trial. Bleau v. Wall, 808 A.2d 637, 2002 R.I. LEXIS 189 (R.I. 2002).

Superior court did not err in denying defendant’s motion for post-conviction relief because the alleged new evidence would not have changed the verdict at trial; it was of no consequence that defendant’s obstructive sleep apnea might have caused him to operate a motor vehicle dangerously even if he were not under the influence of alcohol because defendant acknowledged in open court that he was legally intoxicated when he caused the deaths of two people through the operation of his motor vehicle. Reise v. State, 913 A.2d 1052, 2007 R.I. LEXIS 12 (R.I. 2007).

Doctor’s testimony was not material because it was not the type that would have undermined the confidence in the verdict, as it was vague and of an indefinite nature, and thus the doctor’s testimony did not warrant postconviction relief. D'Alessio v. State, 101 A.3d 1270, 2014 R.I. LEXIS 143 (R.I. 2014).

Superior court properly denied defendant’s application for postconviction relief because defendant was placed on notice—well before the victim’s civil trial testimony—that she was claiming damage to her lawn mower and that an eyewitness would testify, but defendant did not attempt to discover any information regarding the lawn mower or to contact the eyewitness during the criminal case. Defendant’s broad constitutional arguments were waived and lacked merit where the State did not have information regarding the lawn mower in the form of any picture and/or knowledge of the destruction of the lawn mower and defendant failed to establish that the evidence was exculpatory in any way. Dominick v. State, 139 A.3d 426, 2016 R.I. LEXIS 79 (R.I. 2016).

Superior court properly denied defendant’s application for postconviction relief under § 10-9.1-1 because he did not meet the standard for newly discovered evidence, where an inmate’s 2008 letter was merely impeaching, and in no way material to defendant’s underlying convictions, defendant’s contentions that the trial justice impermissibly amended the indictment and erred in implementing his sentence were barred by the doctrine of res judicata in § 10-9.1-8 , defendant did not file a motion to reduce his sentence under R.I. Super. Ct. R. Crim. P. 35 , and § 11-47-3.2 mandated that his sentences were to run consecutively to any other sentence imposed. Graham v. State, 229 A.3d 63, 2020 R.I. LEXIS 43 (R.I. 2020).

Parole.

Under subsection (a)(5), a convict may object to procedures used by the parole board in denying him parole, and the court may determine the scope of due process rights available to the convict at the parole hearing and whether those rights were violated. State v. Ouimette, 117 R.I. 361 , 367 A.2d 704, 1976 R.I. LEXIS 1638 (1976).

Pretrial Publicity.

Summary denial of application for post-conviction relief was proper where petitioner asserted denial of his constitutional right to a fair trial as a result of jurors having read newspaper accounts of his trial, but the articles contained no testimony which was unavailable to the jury nor any prejudicial comments. Palmigiano v. State, 120 R.I. 402 , 387 A.2d 1382, 1978 R.I. LEXIS 677 (1978).

Probation.

Because the trial court’s admonition during the plea colloquy about the potential consequences of an illegal reentry into the United States was not part of the plea agreement, but rather, was a warning about the normal conditions of defendant’s probation, the trial court properly denied defendant’s application for postconviction relief. Javier v. State, 926 A.2d 1017, 2007 R.I. LEXIS 74 (R.I. 2007).

Records on Appeal.

Because no tribunal had heard the merits of defendant’s postconviction-relief arguments, and because the dismissal of defendant’s first application for postconviction relief was denied without prejudice in accordance with R.I. Super. Ct. R. Civ. P. 41 (a)(1), it was only appropriate that the state supreme court remand defendant’s case for a full postconviction-relief hearing on the merits. Spratt v. State, 926 A.2d 1016, 2007 R.I. LEXIS 66 (R.I. 2007).

Recusal.

Postconviction relief applicant was not entitled to relief for a trial justice’s failure to, sua sponte, recuse due to previously representing the applicant because (1) no such duty existed, (2) the trial justice was not told of potential prejudice, and (3) the applicant did not suggest the trial justice remembered representing the applicant. Perry v. State, 132 A.3d 661, 2016 R.I. LEXIS 25 (R.I. 2016).

Res Judicata and Collateral Estoppel.

Because two of the grounds cited by defendant as entitling defendant to postconviction relief under R.I. Gen. Laws § 10-9.1-1 had been raised and decided on direct appeal, and because defendant conceded that trial counsel had not improperly represented defendant, defendant’s claims were barred by res judicata and judicial estoppel. Bleau v. State, 968 A.2d 276, 2009 R.I. LEXIS 43 (R.I. 2009).

Because there was no conflict between the federal and state governments’ asserted authorities, and because the claims raised by defendant had been previously decided or were barred by the doctrine of res judicata, defendant was not entitled to postconviction relief under R.I. Gen. Laws § 10-9.1-1 . Ballard v. State, 983 A.2d 264, 2009 R.I. LEXIS 128 (R.I. 2009).

As petitioner inmate’s claim of insufficiency of the evidence was addressed on direct appeal, it was barred from further review in the inmate’s postconviction relief petition by res judicata pursuant to R.I. Gen. Laws §§ 10-9.1-1 and 10-9.1-8 . Lynch v. State, 13 A.3d 603, 2011 R.I. LEXIS 12 (R.I. 2011).

Defendant’s second R.I. Gen. Laws § 10-9.1-1 application for postconviction relief was properly denied because defendant’s claims regarding newly discovered evidence, a jury note, a statute of limitations defense, and defendant’s sentence were prohibited by res judicata as found in R.I. Gen. Laws § 10-9.1-8 —as they could have been, but were not, raised in defendant’s first application for postconviction relief—and defendant had no constitutional or inherent right to parole and received due process at a parole board hearing. Lyons v. State, 43 A.3d 62, 2012 R.I. LEXIS 59 (R.I. 2012).

Inmate’s application for postconviction relief was properly denied, as his claim concerning the purported inadequacy of a cautionary instruction was barred by res judicata under R.I. Gen. Laws § 10-9.1-8 , because he could have raised this issue on direct appeal. Hall v. State, 60 A.3d 928, 2013 R.I. LEXIS 33 (R.I. 2013).

Voluntariness of Guilty Plea.

The focus of a post-conviction inquiry when there has been a guilty plea is the nature of counsel’s advice concerning the plea and the voluntariness of the plea. State v. Dufresne, 436 A.2d 720, 1981 R.I. LEXIS 1383 (R.I. 1981).

The version of R.I. Gen. Laws § 12-12-22 as amended in 2000, which allowed for vacation of guilty pleas entered in the absence of an advisement regarding possible immigration repercussions, did not apply retroactively to defendant, who pled nolo contendere a few days before the statute took effect; since defendant believed defendant’s mother’s naturalization had made defendant a citizen, the trial justice was under no duty to inquire further, and defendant was not entitled to post-conviction relief from the plea. Tavarez v. State, 826 A.2d 941, 2003 R.I. LEXIS 59 (R.I. 2003).

Although it is clear that applicant was distraught at the beginning of the probation violation hearing, there was no evidence, other than his own assertions, that he was emotional to an extent that rendered his understanding of his admission to the violation a nullity. The record clearly demonstrated that applicant’s rights concerning the hearing and the effect of his waiver were adequately explained to him and his admission was made knowingly, intelligently, and voluntarily; therefore, applicant was not entitled to postconviction relief. Gomes v. State, 161 A.3d 511, 2017 R.I. LEXIS 80 (R.I. 2017).

Voluntariness of Nolo Contendere Plea.

Inmate’s postconviction petition under R.I. Gen. Laws § 10-9.1-1(a)(1) was properly denied as the inmate’s reliance on alleged Rhode Island Department of Corrections (DOC) representations as to the estimated time to serve had no bearing on the knowing and voluntary nature of the inmate’s nolo contendere plea for R.I. Super. Ct. R. Crim. P. 11 purposes, even though DOC’s method of calculating such credits was changed after the state’s highest court found that the up-front method of calculating the credits violated R.I. Gen. Laws § 42-56-24(a) , as: (1) DOC had the discretion to decide whether to award good-time and industrial-time credits at all; and (2) the trial court had no authority over DOC’s determination with respect to individual inmates. Cote v. State, 994 A.2d 59, 2010 R.I. LEXIS 56 (R.I. 2010).

Inmate’s postconviction petition under R.I. Gen. Laws § 10-9.1-1(a)(1) was properly denied as the inmate did not show that the inmate’s nolo contendere plea was involuntary for R.I. Super. Ct. R. Crim. P. 11 purposes, even though the Rhode Island Department of Corrections’ (DOC) method of calculating such credits was changed after the state’s highest court found that the up-front method of calculating the credits violated R.I. Gen. Laws § 42-56-24(a) , as: (1) the inmate only presented the inmate’s unsubstantiated assertions that the inmate was informed by the DOC that the inmate might serve a lesser time based upon a table circulated to inmates illustrating credits that could be received for good-behavior and work-time; (2) there was no evidence of discussions before the trial court at the plea hearing as to the inmate’s understanding of the voluntariness of the inmate’s plea; and (3) the inmate provided no documentation of good-behavior and work-time credits actually earned during the inmate’s incarceration. Cote v. State, 994 A.2d 59, 2010 R.I. LEXIS 56 (R.I. 2010).

Denial of an inmate’s postconviction relief petition was proper because the inmate’s Alford plea was voluntary, intelligent, and knowing for R.I. Super. Ct. R. Crim. P. 11 purposes and the inmate was well aware of the nature of the charges against him at the time he pled to them; it was acceptable for the trial justice to rely on the prosecutor’s recitation of the State’s evidence to establish the factual basis. The inmate failed to satisfy his burden of proving that his plea was not knowingly and voluntarily entered. Camacho v. State, 58 A.3d 182, 2013 R.I. LEXIS 10 (R.I. 2013).

Denial of an applicant’s post-conviction application was proper where the applicant’s nolo contendere plea to second-degree child molestation was voluntary as: (1) the applicant informed the hearing justice during the plea colloquy that he had earned a GED and denied that he was under the influence of any substance; (2) the applicant confirmed that he had reviewed the plea agreement with his attorney and averred that he understood it; and (3) the record reflected no uncertainty, apprehension, or wavering by the applicant during the plea hearing. Jolly v. Wall, 59 A.3d 133, 2013 R.I. LEXIS 25 (R.I. 2013).

Defendant was not entitled to postconviction relief on the basis that his plea of nolo contendere was not knowingly, intelligently, and voluntarily given because he lacked the assistance of an interpreter. Defendant had resided and worked in the United States for years, and there was no evidence that he lacked a basic, functional understanding of English; during the hearing, he answered all questions posed and was not confused or unable to understand the colloquy. Duvere v. State, 151 A.3d 314, 2017 R.I. LEXIS 3 (R.I. 2017).

The fact that the superior court modified defendant’s sentence one week after his nolo contendere plea due to the State’s error, reducing one count to a misdemeanor and the punishment for that count from five years to one year, did not require vacation of the plea or persuade the appellate court that the plea was not knowing and voluntary. Abdoulie Njie v. State, 156 A.3d 429, 2017 R.I. LEXIS 40 (R.I. 2017).

Postconviction hearing justice properly found that the trial court fully satisfied the requirements of R.I. Super. Ct. R. Crim. P. 11 when defendant entered a plea of nolo contendere to possession of cocaine. Denial of the applicant’s postconviction petition also could have been based on the doctrine of laches, as over 12 years had passed since defendant’s plea and defendant did not offer a credible explanation for the delay. Desamours v. State, 210 A.3d 1177, 2019 R.I. LEXIS 97 (R.I. 2019).

Waiver.

A strategic decision to avoid an issue at trial operates as a waiver in all subsequent proceedings. State v. Duggan, 414 A.2d 788, 1980 R.I. LEXIS 1637 (R.I. 1980); State v. Benoit, 417 A.2d 895, 1980 R.I. LEXIS 1723 (R.I. 1980), overruled, State v. Werner, 615 A.2d 1010, 1992 R.I. LEXIS 202 (R.I. 1992).

The petitioner must show by a preponderance of the evidence that he did not deliberately bypass the claim issued at trial. State v. Duggan, 414 A.2d 788, 1980 R.I. LEXIS 1637 (R.I. 1980).

A defendant will not be deprived of judicial review of an alleged deprivation of a basic constitutional right when the failure to comply with the procedural requirement is not a deliberate bypass, if it does not constitute sandbagging by a defense lawyer, and if the record discloses that the breach complained of will constitute something more than harmless error. Mastracchio v. Houle, 416 A.2d 116, 1980 R.I. LEXIS 1654 (R.I. 1980).

Where issues forming basis of defendant’s post-conviction relief application had not been raised on direct appeal, and where defendant did not claim he had been denied effective assistance of counsel, such issues were deemed waived. State v. Carvalho, 450 A.2d 1102, 1982 R.I. LEXIS 981 (R.I. 1982).

Where defendant had failed, ever, to timely raise the issue of the legality of the manner in which his sentence had been imposed, post-conviction relief was unavailable. State v. DeCiantis, 813 A.2d 986, 2003 R.I. LEXIS 16 (R.I. 2003).

Inmate sought postconviction relief, alleging that he did not receive a fair trial due to vouching by a prosecution witness, and that the testimony’s prejudicial effect was not cured by a cautionary instruction. This issue was waived, as the trial court provided him with the option of a mistrial or a cautionary instruction, he elected the latter, and did not challenge the instruction at trial or on direct appeal. Hall v. State, 60 A.3d 928, 2013 R.I. LEXIS 33 (R.I. 2013).

Withdrawal of Appointed Counsel.

In granting appointed counsel’s motion to withdraw, the postconviction relief (PCR) followed the procedures of Shatney v. State, 755 A.2d 130, 135-37 (R.I. 2000), because 1) counsel filed a “no-merit” memorandum explaining why he believed each of plaintiff’s claims lacked merit; 2) after holding a hearing on a hearing on the motion to withdraw, the PCR court found that all of plaintiff’s claims were waived, previously litigated, or meritless; and 3) it afforded him the opportunity to pursue his application pro se. Perez v. State, 57 A.3d 677, 2013 R.I. LEXIS 3 (R.I. 2013).

Withdrawal of Pleas.

Where motion to withdraw a plea of guilty nolo contendere was untimely because imposition of the sentence preceded the filing of that motion, the appeal was treated as if it were from denial of an application for post-conviction relief under the Post Conviction Relief Act, §§ 10-9.1-1 to 10-9.1-9 , as amended, under which authority defendant could validly pursue her claim. State v. Williams, 122 R.I. 32 , 404 A.2d 814, 1979 R.I. LEXIS 2077 (1979).

If the guilty plea was validly entered, the court hearing a petition for post-conviction relief to withdraw the plea does not consider any alleged prior constitutional infirmity. State v. Dufresne, 436 A.2d 720, 1981 R.I. LEXIS 1383 (R.I. 1981).

A defendant who pleads guilty on the advice of counsel must demonstrate at his post-conviction hearing that that advice was not within the range of competence demanded of attorneys in criminal cases in order to be entitled to withdraw the plea. State v. Dufresne, 436 A.2d 720, 1981 R.I. LEXIS 1383 (R.I. 1981).

Collateral References.

Adequacy of defense counsel’s representation of criminal client regarding confessions and related matters. 7 A.L.R.4th 180.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Entrapment Defense — Federal Cases. 42 A.L.R. Fed. 2d 145.

Choice of remedies where federal prosecutor has breached plea bargain—post-Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971) cases. 120 A.L.R. Fed. 501.

Claims of Ineffective Assistance of Counsel in Death Penalty Proceedings — United States Supreme Court Cases. 31 A.L.R. Fed. 2d 1.

Delay: loss of jurisdiction by delay in imposing sentence. 98 A.L.R.3d 605.

Lawful sentence: power of state court, during same term, to increase severity of lawful sentence — modern status. 26 A.L.R.4th 905.

Loss of jurisdiction by delay in imposing sentence. 98 A.L.R.3d 605.

Power of state court, during same term, to increase severity of lawful sentence — modern status. 26 A.L.R.4th 905.

Unlawful sentence: power of court to increase severity of unlawful sentence — modern status. 28 A.L.R.4th 147.

Voluntary absence when sentence is pronounced. 59 A.L.R.5th 135.

10-9.1-2. Court in which brought — Appeal of district court denial.

  1. An action to secure post conviction relief under this chapter shall be brought in the court in which the judgment of conviction was entered.
  2. If an action for post conviction relief is brought in the district court where the judgment of conviction was entered and the relief is denied, the denial may be appealed to the superior court within twenty (20) days of the finding.

History of Section. P.L. 1974, ch. 220, § 3; P.L. 1981, ch. 203, § 1.

NOTES TO DECISIONS

Superior Court’s Jurisdiction.

Under R.I. Gen. Laws § 10-9.1-2(a) , an applicant’s claims for postconviction relief (PCR) based on the family court’s alleged error in waiving jurisdiction over him when he was 17 were properly raised in the superior court, the court in which the judgment of conviction was entered; accordingly, the superior court erred in concluding it lacked jurisdiction to hear the applicant’s claims. Campbell v. State, 56 A.3d 448, 2012 R.I. LEXIS 155 (R.I. 2012).

10-9.1-3. Commencement of proceedings — Verification — Filing — Service.

A proceeding is commenced by filing an application verified by the applicant with the clerk of the appropriate court. An application may be filed at any time. Facts within the personal knowledge of the applicant and the authenticity of all documents and exhibits included in or attached to the application must be sworn to affirmatively as true and correct. The clerk shall docket the application upon its receipt and promptly bring it to the attention of the court and deliver a copy to the attorney general. A filing fee shall not be required for a proceeding under this chapter.

History of Section. P.L. 1974, ch. 220, § 3.

NOTES TO DECISIONS

Doctrine of Laches.

Although R.I. Gen. Laws § 10-9.1-3 allows a postconviction relief application to be filed at any time, the doctrine of laches applies to postconviction cases, as allowing an applicant to wait until the State is prejudiced to file such a motion would cause an absurd result; the State bears the burden of proving by a preponderance of the evidence that the applicant unreasonably delayed in seeking relief and that the State was prejudiced by the delay. Raso v. Wall, 884 A.2d 391, 2005 R.I. LEXIS 162 (R.I. 2005).

10-9.1-4. Application — Contents.

The application shall identify the proceedings in which the applicant was convicted, give the date of the entry of the judgment and sentence complained of, specifically set forth the grounds upon which the application is based, and clearly state the relief desired. Facts within the personal knowledge of the applicant shall be set forth separately from other allegations of facts and shall be verified as provided in § 10-9.1-3 . Affidavits, records, or other evidence supporting its allegations shall be attached to the application or the application shall recite why they are not attached. The application shall identify all previous proceedings, together with the grounds therein asserted, taken by the applicant to secure relief from his or her conviction or sentence. Argument, citations, and discussion of authorities are unnecessary.

History of Section. P.L. 1974, ch. 220, § 3.

NOTES TO DECISIONS

Construction.

In the absence of an explicit request for post-conviction relief as specified in R.I. Gen. Laws § 10-9.1-4 , the United States Court of Appeals for the First Circuit ruled that a motion for the appointment of counsel fails to initiate post-conviction proceedings and, thus, fails to give life to an application for post-conviction review. Voravongsa v. Wall, 349 F.3d 1, 2003 U.S. App. LEXIS 23069 (1st Cir. 2003), cert. denied, 541 U.S. 963, 124 S. Ct. 1724, 158 L. Ed. 2d 407, 2004 U.S. LEXIS 2454 (2004).

Applicability.

District court properly dismissed a state prisoner’s petition for a writ of habeas corpus as untimely under 28 U.S.C. § 2244(d)(1) where in the absence of an explicit request for post-conviction relief as specified in R.I. Gen. Laws § 10-9.1-4 , a motion for appointment of counsel failed to initiate post-conviction proceedings and failed to give life to an application for post-conviction review and as a result, the prisoner had not collaterally attacked his state conviction or sentence as he had not requested such review in his motion for appointment of counsel. Voravongsa v. Wall, 349 F.3d 1, 2003 U.S. App. LEXIS 23069 (1st Cir. 2003), cert. denied, 541 U.S. 963, 124 S. Ct. 1724, 158 L. Ed. 2d 407, 2004 U.S. LEXIS 2454 (2004).

10-9.1-5. Representation for indigent applicants.

An applicant who is indigent shall be entitled to be represented by the public defender. If the public defender is excused from representing the applicant because of a conflict of interest or is otherwise unable to provide representation, the court shall assign counsel to represent the applicant. An indigent applicant is entitled, to the extent deemed appropriate by the court, to be provided with stenographic, printing, and other costs necessary to proceed under this chapter.

History of Section. P.L. 1974, ch. 220, § 3.

NOTES TO DECISIONS

Appointment of Counsel.

Although the post-conviction remedy statute is silent on whether an indigent applicant is entitled to further appointed counsel after the initial appointed counsel seeks to withdraw based upon his determination that the application lacks merit, counsel should be appointed for an applicant unless a previous application involving the same issue or issues has been finally determined adversely to the applicant, and any application on the part of that counsel to withdraw should be made by filing a “no merit” application to be followed by a hearing. Shatney v. State, 755 A.2d 130, 2000 R.I. LEXIS 153 (R.I. 2000), overruled, Motyka v. State, 172 A.3d 1203, 2017 R.I. LEXIS 121 (R.I. 2017).

Where defendant filed a motion for the appointment of counsel, the trial court erred in not first appointing counsel for defendant before denying defendant post-conviction relief, as defendant had not previously applied for post-conviction relief. O'Neil v. State, 814 A.2d 366, 2002 R.I. LEXIS 256 (R.I. 2002).

In order to have a meaningful opportunity to reply prior to summary dismissal under R.I. Gen. Laws § 10-9.1-6(b) , an indigent, first-time applicant for postconviction relief must be afforded counsel upon request pursuant to R.I. Gen. Laws § 10-9.1-5 . Campbell v. State, 56 A.3d 448, 2012 R.I. LEXIS 155 (R.I. 2012).

Postconviction relief court erred in summarily dismissing a first-time applicant’s claims on res judicata grounds because he did not have a meaningful opportunity to reply to the State’s motion to dismiss, as required by R.I. Gen. Laws § 10-9.1-6(b) , since he lacked the assistance of appointed counsel guaranteed by R.I. Gen. Laws § 10-9.1-5 . Campbell v. State, 56 A.3d 448, 2012 R.I. LEXIS 155 (R.I. 2012).

Postconviction relief (PCR) court erred in finding that appointed counsel was an “objective attorney” appointed to conduct an “independent evaluation” of the merits of the applicant’s claims, because under R.I. Gen. Laws § 10-9.1-5 , the indigent, first-time PCR applicant was entitled to be represented in the first instance by the public defender or appointed counsel. Campbell v. State, 56 A.3d 448, 2012 R.I. LEXIS 155 (R.I. 2012).

Indigent, first-time applicant for postconviction relief is entitled to be represented in the first instance by the public defender or appointed counsel, who shall meet with the applicant for a preliminary inquiry into the claims; if, after investigating the claims, counsel deems it appropriate, he or she may seek to withdraw in accordance with the procedure set forth in Shatney v. State, 755 A.2d 130 (R.I. 2000). Campbell v. State, 56 A.3d 448, 2012 R.I. LEXIS 155 (R.I. 2012).

Trial court erred in denying defendant’s application for postconviction relief and a remand was necessary because defendant was not provided with appointed counsel as statutorily required, and defendant should have the opportunity to present—while represented by counsel—whatever claims may be available to him in his first application for postconviction relief, including that he was deprived of the assistance of counsel at the sentence correction stage, after his conviction was affirmed. Ramirez v. State, 89 A.3d 836, 2014 R.I. LEXIS 60 (R.I. 2014).

Post-Conviction Proceedings.

The legislature did not intend that applicants for post-conviction relief would be entitled, at public expense, to have legal counsel appointed to represent them in connection with their appeals from dismissals of successive applications for post-conviction relief when the public defender has concluded, after conducting preliminary investigations of the merits of such appeals, that they lack a reasonable likelihood of success. Louro v. State, 740 A.2d 343, 1999 R.I. LEXIS 192 (R.I. 1999).

Because a person may waive his constitutional right to counsel in a criminal case, there is no reason to question his right to waive his statutory right to counsel in a postconviction relief proceeding, which is a civil matter. Bryant v. Wall, 896 A.2d 704, 2006 R.I. LEXIS 70 (R.I. 2006).

As the postconviction court twice asked whether an inmate wanted an attorney, and he insisted that he wished to proceed pro se, despite the court’s advice not to do so, the court did not err in allowing him to proceed pro se, given his unequivocal rejection of counsel. Bryant v. Wall, 896 A.2d 704, 2006 R.I. LEXIS 70 (R.I. 2006).

Postconviction counsel satisfied R.I. Gen. Laws § 10-9.1-5 and Shatney in seeking to withdraw from representing a postconviction applicant because counsel (1) functioned as the applicant’s attorney and (2) correctly identified the applicant’s claims and explained why the claims lacked merit. Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Trial justice properly granted postconviction counsel’s motion to withdraw because the trial justice held a hearing at which the postconviction applicant was able to respond to counsel’s “no-merit” memorandum. Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Description by petitioner’s postconviction relief counsel of his belief as to his role in the case led to the inevitable conclusion that he was not acting as a zealous advocate, despite the meticulous nature of his work. Therefore, petitioner was not afforded a full, fair, and counseled opportunity to present his claims, before the hearing justice determined them to be meritless Hernandez v. State, 196 A.3d 286, 2018 R.I. LEXIS 116 (R.I. 2018).

10-9.1-6. Pleadings and judgment on pleadings.

  1. Within twenty (20) days after receiving notice of the docketing of the application, or within any further time the court may fix, the attorney general shall respond by answer or by motion which may be supported by affidavits. At any time prior to entry of judgment the court may grant leave to withdraw the application. The court may make appropriate orders for amendment of the application or any pleading or motion, for pleading over, for filing further pleadings or motions, or for extending the time of the filing of any pleading. In considering the application the court shall take account of substance regardless of defects of form. If the application is not accompanied by the record of the proceedings challenged therein, the attorney general shall file with his or her answer the record or portions thereof that are material to the questions raised in the application.
  2. When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant is not entitled to post conviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reasons for so doing. The applicant shall be given an opportunity to reply to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed or grant leave to file an amended application or direct that the proceedings otherwise continue. Disposition on the pleadings and record is not proper if there exists a genuine issue of material fact.
  3. The court may grant a motion by either party for summary disposition of the application when it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

History of Section. P.L. 1974, ch. 220, § 3.

NOTES TO DECISIONS

Counsel’s Motion to Withdraw.

Rather than rely on appointed-counsel’s conclusion concerning the merits of the defendant’s application for post-conviction relief, the court should have assessed counsel’s proposed withdrawal from representation in light of whatever grounds the defendant may have proposed for seeking post-conviction relief, and then determined on the record whether to permit counsel to withdraw. Shatney v. State, 755 A.2d 130, 2000 R.I. LEXIS 153 (R.I. 2000), overruled, Motyka v. State, 172 A.3d 1203, 2017 R.I. LEXIS 121 (R.I. 2017).

Res Judicata.

On appeal from the denial of postconviction relief, decision on the defendant’s direct appeal, in which no violation of his constitutional rights with respect to the use of a benzidine test were found, was res judicata of the substantially identical issue raised in the application for postconviction relief. Carillo v. Moran, 463 A.2d 178, 1983 R.I. LEXIS 1027 (R.I. 1983).

Right to Appointed Counsel.

In order to have a meaningful opportunity to reply prior to summary dismissal under R.I. Gen. Laws § 10-9.1-6(b) , an indigent, first-time applicant for postconviction relief must be afforded counsel upon request pursuant to R.I. Gen. Laws § 10-9.1-5 . Campbell v. State, 56 A.3d 448, 2012 R.I. LEXIS 155 (R.I. 2012).

Postconviction relief court erred in summarily dismissing a first-time applicant’s claims on res judicata grounds because he did not have a meaningful opportunity to reply to the State’s motion to dismiss, as required by R.I. Gen. Laws § 10-9.1-6(b) , since he lacked the assistance of appointed counsel guaranteed by R.I. Gen. Laws § 10-9.1-5 . Campbell v. State, 56 A.3d 448, 2012 R.I. LEXIS 155 (R.I. 2012).

Standards.

The standard for dismissing an application under subdivision (c) is the same as that used in ruling on motions under R.C.P. 12(b)(6). Palmigiano v. State, 120 R.I. 402 , 387 A.2d 1382, 1978 R.I. LEXIS 677 (1978).

The standards for granting a motion under subdivision (c) are identical to those utilized in passing on a summary judgment motion. Palmigiano v. State, 120 R.I. 402 , 387 A.2d 1382, 1978 R.I. LEXIS 677 (1978).

Summary Denial.

Summary denial of application for post-conviction relief was proper where petitioner asserted denial of his constitutional right to a fair trial as a result of jurors having read newspaper accounts of his trial, but the articles contained no testimony which was unavailable to the jury nor any prejudicial comments. Palmigiano v. State, 120 R.I. 402 , 387 A.2d 1382, 1978 R.I. LEXIS 677 (1978).

Where the trial justice improperly denied the petitioner an opportunity to reply to the court’s stated intent to dismiss his application for post-conviction relief, the judgment dismissing the application was vacated and the case remanded. Toole v. State, 713 A.2d 1264, 1998 R.I. LEXIS 216 (R.I. 1998).

Hearing justice erred in dismissing defendant’s application for post-conviction relief without first providing defendant with an opportunity to reply to the proposed dismissal of his application without an evidentiary hearing. State v. Frazar, 776 A.2d 1062, 2001 R.I. LEXIS 185 (R.I. 2001).

Applicant’s request for postconviction relief was improperly denied as the applicant was not given an opportunity to respond to the proposed dismissal of his application for lack of activity under R.I. Gen. Laws § 9-8-5 ; the requirement of R.I. Gen. Laws § 10-9.1-6(b) of an opportunity to respond to a proposed dismissal could not be disregarded. Corners v. State, 922 A.2d 176, 2007 R.I. LEXIS 48 (R.I. 2007).

Summary dismissal of defendant’s application for postconviction relief by the trial justice was appropriate, as provided for in R.I. Gen. Laws § 10-9.1-6(b) , because the question before the justice was a question of law, and defendant was afforded an opportunity to respond, and did respond, to the motion to dismiss by the State of Rhode Island. Further, the justice considered defendant’s argument, but perceived no constitutional infirmity to the sentencing statute under which defendant was imprisoned. Sosa v. State, 949 A.2d 1014, 2008 R.I. LEXIS 77 (R.I. 2008).

Inmate was not improperly denied the opportunity to present testimonial or documentary evidence in support of the inmate’s second postconviction-relief application because (1) the inmate declined a chance to present testimonial or documentary evidence, and (2) the inmate filed extensive memoranda and documents related to the application, so the inmate had a sufficient chance to respond to the application’s proposed dismissal, under R.I. Gen. Laws § 10-9.1-6(b) . Brown v. State, 32 A.3d 901, 2011 R.I. LEXIS 142 (R.I. 2011).

Evidentiary hearing is required in the first application for postconviction relief in all cases involving applicants sentenced to life without the possibility of parole. Tassone v. State, 42 A.3d 1277, 2012 R.I. LEXIS 65 (R.I. 2012), limited, Ricci v. State, 196 A.3d 292, 2018 R.I. LEXIS 115 (R.I. 2018).

On an application for postconviction relief, the absence of a trial transcript, coupled with the lack of an evidentiary hearing, precluded an adequate, independent review of trial counsel’s effectiveness. Tassone v. State, 42 A.3d 1277, 2012 R.I. LEXIS 65 (R.I. 2012), limited, Ricci v. State, 196 A.3d 292, 2018 R.I. LEXIS 115 (R.I. 2018).

In dismissing an inmate’s petition for postconviction relief, the court complied with R.I. Gen. Laws § 10-9.1-6(b) by affording him an opportunity to reply to its proposed summary dismissal and giving him ample additional time to file another memorandum in support of his petition, which he failed to do. Perez v. State, 57 A.3d 677, 2013 R.I. LEXIS 3 (R.I. 2013).

No genuine issue of material fact barred the summary dismissal of a postconviction applicant’s ineffective assistance of counsel claim because the only material the applicant produced in opposition was inadmissible. Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Judgment denying and dismissing petitioner’s application for postconviction relief was vacated, where petitioner was not provided a meaningful opportunity to respond to the hearing justice’s proposed dismissal of his application. Hernandez v. State, 196 A.3d 286, 2018 R.I. LEXIS 116 (R.I. 2018).

Summary Judgment.

Where the trial justice relied on matters outside the pleadings in denying an application for post-conviction relief, the state’s motion under subdivision (b) was treated as a motion for summary judgment as if brought under subdivision (c). Palmigiano v. State, 120 R.I. 402 , 387 A.2d 1382, 1978 R.I. LEXIS 677 (1978).

Trial court did not err in denying an applicant’s petition for postconviction relief on the ground that it was barred by the doctrine of laches because the State proved that the applicant’s delay was unreasonable; the applicant waited fourteen years to file his petition, and during that time, he had repeated contact with the judicial system in the form of fulfilling his obligations to register as a sex offender, and appearing before the court in relation to his probation requirements. Santos v. State, 91 A.3d 341, 2014 R.I. LEXIS 78 (R.I. 2014).

10-9.1-7. Procedure — Evidence — Order.

A record of the proceedings shall be made and preserved. All rules and statutes applicable in civil proceedings shall apply except that pretrial discovery proceedings shall be available only upon order of the court. The court may receive proof by affidavits, depositions, oral testimony, or other evidence and may, if deemed appropriate, order the applicant be brought before it for the hearing. If the court finds in favor of the applicant, it shall enter an appropriate order with respect to the conviction or sentence in the former proceedings, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence, or other matters that may be necessary and proper. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented. This order is a final judgment.

History of Section. P.L. 1974, ch. 220, § 3.

NOTES TO DECISIONS

Burden of Proof.

Where the state trial court misallocated the burden of proof in a post-conviction proceeding but that allocation did not dictate the court’s finding of probable cause and voluntary consent, the misallocation did not deny the applicant a full and fair opportunity to litigate his fourth amendment claims, and thus federal habeas corpus relief was barred. Palmigiano v. Houle, 618 F.2d 877, 1980 U.S. App. LEXIS 18824 (1st Cir.), cert. denied, 449 U.S. 901, 101 S. Ct. 272, 66 L. Ed. 2d 132, 1980 U.S. LEXIS 3508 (1980).

Since the burden of proving consent to a search is on the government in habeas corpus proceedings, the burden is likewise on the government under this chapter. Palmigiano v. Mullen, 119 R.I. 363 , 377 A.2d 242, 1977 R.I. LEXIS 1909 (1977).

In proceedings under this chapter the petitioner generally bears the burden of proving his allegations by a preponderance of the evidence. Palmigiano v. Mullen, 119 R.I. 363 , 377 A.2d 242, 1977 R.I. LEXIS 1909 (1977).

The petitioner must show by a preponderance of the evidence that he did not deliberately bypass the claimed issue at trial. State v. Duggan, 414 A.2d 788, 1980 R.I. LEXIS 1637 (R.I. 1980).

Petitioner’s claim that the postconviction justice failed to follow procedure set forth in Shatney v. State, 755 A.2d 130 (R.I. 2000), before permitting his counsel to withdraw lacked merit; the petitioner was permitted to submit to the court two pro se memoranda to supplement the application for postconviction relief and the petitioner was given an opportunity to speak on his own behalf at all three hearings. Thornton v. State, 948 A.2d 312, 2008 R.I. LEXIS 71 (R.I. 2008).

Findings of Fact.

Although R.I. Gen. Laws § 10-9.1-7 required a court to make specific findings of fact and state expressly its conclusions of law relating to each issue presented, the hearing justice could not have ruled that the applicant’s constitutional rights were violated without first determining that his counsel’s performance was deficient and that that deficiency did in fact prejudice the applicant’s defense. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Post Conviction Relief Denied.

Because defendant’s lawyer undertook a lengthy and pointed cross-examination of the complaining witness and the admission of a witness’s hearsay evidence was not prejudicial, defendant failed to establish prejudice resulting from the lawyer’s performance; consequently, the trial court properly denied defendant’s petition for postconviction relief. Anderson v. State, 878 A.2d 1049, 2005 R.I. LEXIS 145 (R.I. 2005).

Inmate was not entitled to postconviction relief based on a claim that the inmate’s trial preparations secretly were taped by hidden camera while he was incarcerated and provided to the state’s attorneys, who allegedly used the tapes to subvert his defense during trial and thus, he was entitled to depose various police officers and guards to prove his allegations, because the inmate was not entitled to take depositions of any other individual and therefore could not survive the state’s motion for summary disposition. State v. Laurence, 18 A.3d 512, 2011 R.I. LEXIS 51 (R.I. 2011).

Inmate was not improperly denied the opportunity to present testimonial or documentary evidence in support of the inmate’s second postconviction-relief application because (1) the inmate declined a chance to present testimonial or documentary evidence, and (2) the inmate filed extensive memoranda and documents related to the application, so the inmate had a sufficient chance to respond to the application’s proposed dismissal, under R.I. Gen. Laws § 10-9.1-6(b) . Brown v. State, 32 A.3d 901, 2011 R.I. LEXIS 142 (R.I. 2011).

Superior court properly denied defendant’s application for postconviction relief. While approximately 10 years had passed since the attorneys represented defendant and they had represented numerous defendants since his respective cases, each attorney testified that his standard practice was to consider any suppression issues whenever he represented a criminal defendant, that he did not have an independent recollection of defendant’s case, but that a review of the criminal information package for the pertinent case had jogged some details in his memory; defendant did not provide a specific basis for his allegations or any evidence to support them; and while hindsight clearly revealed the far-reaching collateral consequences of his nolo contendere pleas, defendant received three favorable dispositions. Lipscomb v. State, 144 A.3d 299, 2016 R.I. LEXIS 90 (R.I. 2016).

Res Judicata.

On appeal from the denial of postconviction relief, decision on the defendant’s direct appeal, in which no violation of his constitutional rights with respect to the use of a benzidine test were found, was res judicata of the substantially identical issue raised in the application for postconviction relief. Carillo v. Moran, 463 A.2d 178, 1983 R.I. LEXIS 1027 (R.I. 1983).

Timeliness.

Even though a hearing justice issued her decision on January 23, 2004, the State filed its notice of appeal on February 10, 2004, and the applicant filed his cross-appeal on February 23, 2004, an order granting the application for postconviction relief was not entered until August 4, 2005. Regardless, premature appeals were timely filed, and an order that granted an application for postconviction relief was considered a final judgment for purposes of appeal to the Supreme Court of Rhode Island pursuant to R.I. Gen. Laws §§ 10-9.1-7 , 10-9.1-9 . Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

10-9.1-8. Waiver of or failure to assert claims.

All grounds for relief available to an applicant at the time he or she commences a proceeding under this chapter must be raised in his or her original, or a supplemental or amended, application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds that in the interest of justice the applicant should be permitted to assert such a ground for relief.

History of Section. P.L. 1974, ch. 220, § 3.

NOTES TO DECISIONS

Availability of Direct Review.

A petitioner seeking post-conviction relief must first satisfy the court that direct review of the issues presented in his application was not available to him. State v. Duggan, 414 A.2d 788, 1980 R.I. LEXIS 1637 (R.I. 1980).

Where defendant had failed, ever, to timely raise the issue of the legality of the manner in which his sentence had been imposed, post-conviction relief was unavailable. State v. DeCiantis, 813 A.2d 986, 2003 R.I. LEXIS 16 (R.I. 2003).

Court rejected defendant’s claim that his trial counsel was ineffective for failing to file a motion for a new trial when he learned from the presentence report that a victim may have attended counseling at a Rape Crisis Center. The claim was not raised on direct review and was, therefore, waived. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Res Judicata.

An application for relief was denied where the grounds upon which the defendant relied had been previously adjudicated against him. Thornley v. Mullen, 115 R.I. 505 , 349 A.2d 158, 1975 R.I. LEXIS 1179 (1975).

On appeal from the denial of postconviction relief, decision on the defendant’s direct appeal, in which no violation of his constitutional rights with respect to the use of a benzidine test were found, was res judicata of the substantially identical issue raised in the application for postconviction relief. Carillo v. Moran, 463 A.2d 178, 1983 R.I. LEXIS 1027 (R.I. 1983).

When defendant argued, in his appeal of the trial court’s denial of his motion for post-conviction relief, that he was prejudiced at trial, where the child victim testified by videotape, by the trial court’s comment that the videotape was for the child’s protection, this argument was not considered because it was barred under R.I. Gen. Laws § 10-9.1-8 , as it could have been raised on direct appeal. Taylor v. Wall, 821 A.2d 685, 2003 R.I. LEXIS 103 (R.I. 2003).

Where a prisoner’s petition for postconviction relief was twice dismissed, once without prejudice and once with prejudice, and the prisoner chose to voluntarily withdraw his appeal to the second dismissal, the judgment was a final adjudication on the merits for res judicata purposes. Consequently, the trial court correctly rejected the prisoner’s third application in which the prisoner attempted to relitigate, the final adjudicated issues raised in the previous application for postconviction relief and asserted an additional ground that could have been, but was not, raised in the earlier application. Figueroa v. State, 897 A.2d 55, 2006 R.I. LEXIS 74 (R.I. 2006).

Applicant’s second application for post-conviction relief was properly dismissed because the applicant was afforded a full opportunity to raise the issues raised in the second application in his original application, in which his allegations of ineffective assistance of counsel were heard and denied. Miguel v. State, 924 A.2d 3, 2007 R.I. LEXIS 56 (R.I.), cert. denied, 552 U.S. 957, 128 S. Ct. 390, 169 L. Ed. 2d 275, 2007 U.S. LEXIS 11331 (2007).

Applicant was not entitled to relief on applicant’s third application for postconviction relief in a case where applicant was convicted of offenses involving a shooting in which the applicant fired at one person and accidentally struck a four-year-old girl playing on the sidewalk with her brother; the applicant raised new claims in the applicant’s third application and did not explain why those claims either could not have been raised in the first application or could not have been ruled upon in the second application. Ramirez v. State, 933 A.2d 1110, 2007 R.I. LEXIS 101 (R.I. 2007).

Interest of justice exception to R.I. Gen. Laws § 10-9.1-8 did not operate to allow an inmate’s claim that he could not have raised a claim that his Alford plea to reckless driving was involuntary in his first post-conviction application that dealt with a conviction for murder. The inmate could have and should have raised his Alford plea arguments in his first application for postconviction relief; because he did not, the claims in the second application for postconviction relief were barred by virtue of the res judicata doctrine. Mattatall v. State, 947 A.2d 896, 2008 R.I. LEXIS 65 (R.I. 2008).

Interest of justice exception to the doctrine of res judicata referred to in R.I. Gen. Laws § 10-9.1-8 did not require a court to address the voluntariness arguments in an inmate’s application for postconviction relief as to his 1979 Alford plea. The transcript of the proceedings relative to the Alford plea indicated that inmate understood the significance of his entering an Alford plea and that he was doing so for reasons that he perceived as being beneficial to him. Mattatall v. State, 947 A.2d 896, 2008 R.I. LEXIS 65 (R.I. 2008).

An applicant’s second petition for postconviction relief was barred by R.I. Gen. Laws § 10-9.1-8 and the doctrine of res judicata when the applicant knew before the filing of the first petition that he and one of his codefendants had shared the same attorney, and he could have and should have raised the issue in his first petition; the applicant’s failure to raise the issue in his first petition resulted in a bar to the litigation of that issue and that claim for relief, and the applicant failed to show that the interest of justice required the supreme court to revisit the issue. Ferrell v. Wall, 971 A.2d 615, 2009 R.I. LEXIS 80 (R.I. 2009).

As petitioner inmate’s claim of insufficiency of the evidence was addressed on direct appeal, it was barred from further review in the inmate’s postconviction relief petition by res judicata pursuant to R.I. Gen. Laws §§ 10-9.1-1 and 10-9.1-8 . Lynch v. State, 13 A.3d 603, 2011 R.I. LEXIS 12 (R.I. 2011).

Inmate’s claims of ineffective assistance of counsel, as to the first attorney, were barred by res judicata, having been previously argued and denied on direct appeal. State v. Laurence, 18 A.3d 512, 2011 R.I. LEXIS 51 (R.I. 2011).

Inmate’s claim, in a second postconviction-relief application, of newly discovered evidence failed because (1) the claim was waived, under R.I. Gen. Laws § 10-9.1-8 , as the inmate did not submit the evidence with the inmate’s first postconviction-relief application, despite the availability of the evidence, and (2) the “interest of justice” exception allowing successive applications did not apply. Brown v. State, 32 A.3d 901, 2011 R.I. LEXIS 142 (R.I. 2011).

R.I. Gen. Laws § 10-9.1-8 barred an inmate’s postconviction claim that finding the inmate in criminal contempt for refusing to participate in treatment ordered in the inmate’s sentence, after the inmate was found in civil contempt for the same offense, violated double jeopardy because (1) the claim had previously been rejected, and (2) the inmate did not raise the inmate’s current variation of the claim on direct appeal. Price v. Wall, 31 A.3d 995, 2011 R.I. LEXIS 143 (R.I. 2011).

Defendant’s second R.I. Gen. Laws § 10-9.1-1 application for postconviction relief was properly denied because defendant’s claims regarding newly discovered evidence, a jury note, a statute of limitations defense, and defendant’s sentence were prohibited by res judicata as found in R.I. Gen. Laws § 10-9.1-8 —as they could have been, but were not, raised in defendant’s first application for postconviction relief—and defendant had no constitutional or inherent right to parole and received due process at a parole board hearing. Lyons v. State, 43 A.3d 62, 2012 R.I. LEXIS 59 (R.I. 2012).

Inmate’s claim, in a second application for postconviction relief, that the inmate was entitled to relief due to the prosecution’s failure to disclose the victim’s medical records was procedurally barred because (1) the inmate did not raise the claim in the prior postconviction relief application, in which the inmate argued defense counsel provided ineffective assistance for not obtaining the records, (2) this ground for relief was “available” to the inmate when the inmate filed the inmate’s first application, since the inmate clearly had notice, at that time, of the existence of the records, and (3) the “interests of justice” exception in R.I. Gen. Laws § 10-9.1-8 did not apply, since the inmate offered no reason why the inmate’s challenge could not have been raised in the inmate’s prior application, especially given the inmate’s prior notice of the records’ existence. Anderson v. State, 45 A.3d 594, 2012 R.I. LEXIS 96 (R.I. 2012).

When an inmate claimed, in a second application for postconviction relief, that (1) the inmate was entitled to relief due to the prosecution’s failure to disclose the victim’s medical records, and (2) the inmate’s claim was not procedurally barred, since the inmate’s claim that the records were necessary to impeach the victim’s credibility was distinct from the inmate’s prior claim that the records showed the victim suffered no trauma, the inmate’s claim failed because both theories were based on the inmate’s knowledge that the records showed no evidence of trauma, so both theories could have been raised in the inmate’s first application. Anderson v. State, 45 A.3d 594, 2012 R.I. LEXIS 96 (R.I. 2012).

Applicant’s claim that his conviction and sentence as an aider and abetter violated R.I. Gen. Laws § 11-1-3 was not waived under R.I. Gen. Laws § 10-9.1-8 , because his attorney and the state agreed to address the issue at the postconviction-relief hearing and the postconviction court considered the arguments of each party and rendered a decision. Jaiman v. State, 55 A.3d 224, 2012 R.I. LEXIS 137 (R.I. 2012).

Postconviction relief court erred in summarily dismissing a first-time applicant’s claims on res judicata grounds because he did not have a meaningful opportunity to reply to the State’s motion to dismiss, as required by R.I. Gen. Laws § 10-9.1-6(b) , since he lacked the assistance of appointed counsel guaranteed by R.I. Gen. Laws § 10-9.1-5 . Campbell v. State, 56 A.3d 448, 2012 R.I. LEXIS 155 (R.I. 2012).

Inmate’s application for postconviction relief was properly denied, as his claim concerning the purported inadequacy of a cautionary instruction was barred by res judicata under R.I. Gen. Laws § 10-9.1-8 , because he could have raised this issue on direct appeal. Hall v. State, 60 A.3d 928, 2013 R.I. LEXIS 33 (R.I. 2013).

Res judicata barred defendant’s postconviction claims of untimely habitual offender sentencing notice and lack of defendant’s consent to an indictment amendment because (1) the parties were the same as on direct appeal resulting in a final judgment, when defendant could have raised the claims, and (2) an interest of justice exception did not apply. Ricci v. State, 196 A.3d 292, 2018 R.I. LEXIS 115 (R.I. 2018).

Superior court properly denied defendant’s application for postconviction relief because, inter alia, defendant’s contentions that the trial justice impermissibly amended the indictment by instructing the jury on aiding and abetting when he was charged as principal, and erred by sentencing him to life without parole for first-degree murder followed by a consecutive life sentence under § 11-47-3.2 —were barred by the doctrine of res judicata in § 10-9.1-8 ; further, defendant was indeed convicted as a principal, defendant did not file a motion to reduce his sentence under R.I. Super. Ct. R. Crim. P. 35 , and § 11-47-3.2 mandated that his sentence under that statute was to run consecutively to any other sentence imposed. Graham v. State, 229 A.3d 63, 2020 R.I. LEXIS 43 (R.I. 2020).

Reviewability In General.

Petitioner’s ineffective assistance of counsel claim was not reviewed because the claim was not before the hearing justice and the parties did not address such, but it was noted that such a claim would need to meet a high bar in the event a subsequent post-conviction relief application was filed. D'Alessio v. State, 101 A.3d 1270, 2014 R.I. LEXIS 143 (R.I. 2014).

Strategy on Direct Review.

Defendant’s claim that his appellate counsel was ineffective because she failed to raise the issue of the Rape Crisis Center records and other issues on direct appeal was meritless. Counsel was not required to raise every nonfrivolous claim, but was entitled to select from among them in order to maximize the likelihood of success on appeal. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Trial Strategy.

A strategic decision to avoid an issue at trial operates as a waiver in all subsequent proceedings. State v. Duggan, 414 A.2d 788, 1980 R.I. LEXIS 1637 (R.I. 1980).

A defendant will not be deprived of judicial review of an alleged deprivation of a basic constitutional right when the failure to comply with the procedural requirement is not a deliberate bypass, if it does not constitute sandbagging by a defense lawyer, and if the record discloses that the breach complained of will constitute something more than harmless error. Mastracchio v. Houle, 416 A.2d 116, 1980 R.I. LEXIS 1654 (R.I. 1980).

10-9.1-9. Review.

An aggrieved party seeking review of a final judgment entered in a proceeding brought under this chapter shall do so by filing a petition for writ of certiorari in accordance with the supreme court rules of appellate procedure within sixty (60) days of the entry of the final judgment.

History of Section. P.L. 1974, ch. 220, § 3; P.L. 2015, ch. 91, § 1; P.L. 2015, ch. 92, § 1; P.L. 2017, ch. 72, § 1; P.L. 2017, ch. 101, § 1.

Compiler’s Notes.

P.L. 2015, ch. 91, § 1, and P.L. 2015, ch. 92, § 1 enacted identical amendments to this section.

P.L. 2017, ch. 72, § 1, and P.L. 2017, ch. 101, § 1 enacted identical amendments to this section.

NOTES TO DECISIONS

Bail.

Bail pending appeal of an unsuccessful collateral attack on a final conviction should be granted only in exceptional cases. State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

The supreme court requires an applicant who requests bail to show that incarceration pending review of his application for post-conviction relief would be manifestly unjust. State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

An applicant who seeks release pending appellate review of an application for post-conviction relief should move the supreme court to admit him to bail. State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

For purposes of granting bail, the supreme court shall treat an appeal from a denial of an application for post-conviction relief as equivalent to a denial of a writ of habeas corpus following a final conviction. Thus, the court’s inherent power to grant bail pending review of a habeas challenge to a final conviction is incorporated in a review of the merits of an application for post-conviction relief. State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

Findings of Fact.

On appeal, the supreme court will not disturb a finding of fact unless the trial justice was clearly wrong or overlooked or misconceived material evidence. State v. Duggan, 414 A.2d 788, 1980 R.I. LEXIS 1637 (R.I. 1980); State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

The findings of the hearing justice on a petition for post-conviction relief are entitled to stand undisturbed on review in the absence of clear error or a showing that material evidence was overlooked or misconceived by the hearing justice. State v. Dufresne, 436 A.2d 720, 1981 R.I. LEXIS 1383 (R.I. 1981).

Petition.

Defendant was not entitled to postconviction relief on a murder charge because the murder charge and defendant’s eventual guilty plea were not before the court in the application for relief; the gravamen of defendant’s application was, by its own terms, the breaking and entering and larceny pleas that were entered against defendant. Moreover, when defendant pleaded guilty to second-degree murder, defendant agreed to dismiss all pending actions, including the application for postconviction relief. Burke v. State, 173 A.3d 330, 2017 R.I. LEXIS 119 (R.I. 2017).

Record on Appeal.

Because the record was devoid of any judgment or order embodying a magistrate’s decision, pursuant to R.I. Gen. Laws § 10-9.1-9 , defendant’s appeal was not properly before the Supreme Court. Yates v. Wall, 970 A.2d 36, 2009 R.I. LEXIS 51 (R.I. 2009).

Timeliness.

Even though a hearing justice issued her decision on January 23, 2004, the State filed its notice of appeal on February 10, 2004, and the applicant filed his cross-appeal on February 23, 2004, an order granting the application for postconviction relief was not entered until August 4, 2005. Regardless, premature appeals were timely filed, and an order that granted an application for postconviction relief was considered a final judgment for purposes of appeal to the Supreme Court of Rhode Island pursuant to R.I. Gen. Laws §§ 10-9.1-7 , 10-9.1-9 . Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

10-9.1-10. Innocence protection — Definitions.

  1. “DNA Testing” means forensic deoxyribonucleic acid testing.
  2. “Agent” means a firm, person or corporation to whom the Rhode Island state police or local municipal police department entrusts or delivers evidence to undergo DNA testing.

History of Section. P.L. 2002, ch. 386, § 1.

10-9.1-11. Innocence protection — Mandatory preservation of biological evidence.

  1. Mandatory preservation.  During the term of the defendant’s incarceration resulting from his or her conviction after trial, the Rhode Island state police and each and every municipal police department in the state of Rhode Island, their agents, and any person to whom biological evidence has been transferred shall be obligated to preserve all biological evidence that comes into its possession during the course of a criminal investigation.
  2. Petition to destroy evidence.  A police department or agent may be relieved of the obligation of mandatory preservation by applying to a justice of the superior court for permission to destroy biological evidence. Upon receipt of the petition, a justice of the superior court shall hold a hearing, and after giving notice to all defendants charged in connection with the prosecution, the justice shall grant the petition upon finding that:
    1. The Rhode Island Supreme Court has decided the defendant’s appeal; and
    2. The defendant does not seek further preservation of the biological evidence.
  3. Petition by defendant requesting testing.  Notwithstanding any other provision of law governing postconviction relief, any person who was convicted of and sentenced for a crime may, at any time, file a petition with the superior court requesting the forensic DNA testing of any evidence that is in the possession or control of the prosecution, law enforcement, laboratory, or court. A person filing a petition under this section must certify under the pains and penalties of perjury that the requested testing is related to the investigation or prosecution that resulted in the judgment of conviction and that the evidence sought to be tested contains biological evidence.

History of Section. P.L. 2002, ch. 386, § 1; P.L. 2015, ch. 119, § 1; P.L. 2015, ch. 153, § 1.

Compiler’s Notes.

P.L. 2015, ch. 119, § 1, and P.L. 2015, ch. 153, § 1 enacted identical amendments to this section.

10-9.1-12. Innocence protection — DNA testing of evidence.

  1. Mandatory testing.  After notice to the prosecution and a hearing, a justice of the superior court shall order testing after finding that:
    1. A reasonable probability exists that petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.
    2. The evidence is still in existence and is capable of being subjected to DNA testing.
    3. The evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing; or that the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing.
    4. The petition before the Superior Court was filed in order to demonstrate the petitioner’s innocence and not to delay the administration of justice.
  2. Discretionary testing.  After notice to the prosecution and a hearing, a justice of the superior court may order testing after finding that:
    1. A reasonable probability exists that the requested testing will produce DNA results which would have altered the verdict or reduced the petitioner’s sentence if the results had been available at the prior proceedings leading to the judgment of conviction.
    2. The evidence is still in existence and is capable of being subjected to DNA testing.
    3. The evidence, or a specific portion of the evidence identified by the petitioner was never previously subjected to DNA testing; or that the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing.
    4. The petition before the superior court was filed in order to demonstrate the petitioner’s innocence and not to delay the administration of justice.
  3. Costs.  Unless the justice hearing the motion finds that the defendant has the present ability to pay the costs associated with DNA testing, the justice shall order that the state of Rhode Island pay for the costs of the DNA testing ordered under this chapter. Unless good cause is shown, all testing ordered under this section shall be conducted by the Rhode Island department of health.

History of Section. P.L. 2002, ch. 386, § 1.

Chapter 10 Imprisonment on Civil Process

10-10-1. Grounds for writ commanding arrest.

At the commencement of a civil action, a writ, commanding the arrest of any person not exempt by law from arrest, shall be issued from the superior court or from any district court only after application to a justice thereof, who may, in his or her discretion, order the issuance of the writ and who shall endorse such order in writing on the face of the writ:

  1. In any action on penal statutes, or in any action sounding in tort, except replevin, or against bail in criminal cases.
  2. Whenever the plaintiff in the action, his or her agent or attorney, shall make affidavit, to be endorsed on the writ or annexed to the writ, that the plaintiff has a just claim against the defendant, that is due, upon which the plaintiff expects to recover in the action a sum sufficient to give jurisdiction to the court to which the writ is returnable; and also either that the defendant to be arrested is about to leave the state, without leaving therein real or personal estate whereon an execution that may be obtained in such action can be served, and, in case the defendant is not a resident of the state, that the plaintiff, or if more than one plaintiff, that some of the plaintiffs are actual residents of the state, or that the defendant to be arrested has committed fraud in fact involving moral turpitude or intentional wrong, either in contracting the debt upon which the action is founded or in the concealment of his or her property or in the disposition of the property; provided, that whenever an arrest shall be made in accordance with the second clause of this section, the court to which the writ is made returnable, or any justice thereof, may by order, upon application of any defendant so arrested, and for cause shown upon hearing the parties therein, release the defendant from the arrest and discharge the bail taken thereon, if any; but the action shall not be dismissed on account of the release and discharge, but may be prosecuted to final judgment in the same manner as if no release and discharge had been granted.

History of Section. C.P.A. 1905, § 507; G.L. 1909, ch. 299, § 11; G.L. 1923, ch. 349, § 11; G.L. 1038, ch. 559, § 1; G.L. 1956, § 10-10-1 ; P.L. 1961, ch. 167, § 1; P.L. 1965, ch. 55, § 53.

Rules of Court.

For proceedings for writ of arrest in district court, see District Court Civil Rule 4(k).

For proceedings for writ of arrest in superior court, see Super. Ct. R. Civ. Pro. Rule 4(m).

Cross References.

Cases in which execution may issue against body, § 9-25-15 .

Duties of sheriffs, § 42-29-1 .

Fee for serving writ of arrest, § 9-29-9 .

Mesne process writs, § 9-5-14 .

Comparative Legislation.

Civil arrest and imprisonment:

Mass. Ann. Laws ch. 224, § 1 et seq.

NOTES TO DECISIONS

Amendment of Affidavit.

Affidavit endorsed on writ of arrest could be amended by adding the official designation of the notary public. Hudson v. Fishel, 17 R.I. 69 , 20 A. 100, 1890 R.I. LEXIS 40 (1890).

Affidavit is not part of the process, but rather is a condition authorizing service of process by arrest, so could not be amended. Farrow v. Dutcher, 19 R.I. 715 , 36 A. 839, 1897 R.I. LEXIS 15 (1897).

Appeal and Review.

Supreme court had no jurisdiction to review on bill of exceptions ruling of district court excluding evidence in support of allegations in affidavit. Coates v. Woodward, 22 R.I. 562 , 48 A. 932, 1901 R.I. LEXIS 54 (1901).

Defective Affidavit.

Omission from affidavit of allegation that claim was due was fatal defect. Farrow v. Dutcher, 19 R.I. 715 , 36 A. 839, 1897 R.I. LEXIS 15 (1897).

Fraudulent Conveyance.

A debtor’s conveyance to a trustee for the benefit of creditors, though made with the approval and consent of a majority of his creditors, is presumptively fraudulent as to nonassenting creditors and a sufficient showing of fraud to support such a creditor’s affidavit for arrest. Eichenberg v. Marcy, 18 R.I. 169 , 26 A. 46, 1893 R.I. LEXIS 12 (1893).

Leaving State.

Affidavit for arrest of nonresident defendant on ground that he is about to leave the state was sufficient where, at time of making such affidavit, defendant was on a train in another state approaching Rhode Island with intent to leave Rhode Island within a reasonably short time after arrival. Providence Theatre Co. v. District Court of Sixth Judicial Dist., 38 R.I. 12 , 94 A. 865, 1915 R.I. LEXIS 58 (1915).

Malicious Use of Process.

Action for malicious use of process would lie against plaintiff for securing arrest and imprisonment upon false affidavit that defendant was about to leave the state, even though the suit under which the imprisonment was secured was based on good cause. Lauzon v. Charroux, 18 R.I. 467 , 28 A. 975, 1894 R.I. LEXIS 26 (1894).

Where affidavit was made upon probable cause, after statement of case to counsel and upon advice of counsel, an action for malicious arrest would not lie upon failure of the action. Brusco v. Morry, 54 R.I. 108 , 170 A. 84, 1934 R.I. LEXIS 15 (1934).

Residence of Plaintiff.

Foreign corporation which had property within the state, paid city and state taxes, transacted business and exercised almost all of its corporate functions within the state, was actual resident of the state so as to be able to cause the arrest of nonresident defendants. Providence Theatre Co. v. District Court of Sixth Judicial Dist., 38 R.I. 12 , 94 A. 865, 1915 R.I. LEXIS 58 (1915).

Tort and Contract.

For the purposes of this section an action for breach of promise of marriage is an action ex contractu and service may not be made by arrest where no affidavit is annexed to the writ. Malone v. Ryan, 14 R.I. 614 , 1885 R.I. LEXIS 3 (1885); Conlon v. Cassidy, 17 R.I. 518 , 23 A. 100, 1891 R.I. LEXIS 69 (1891).

Trial by Jury.

The constitutional guaranty of trial by jury did not entitle defendant to jury trial on allegations of affidavit as provision for affidavit did not exist when the Constitution was adopted. Shaw v. Silverstein, 21 R.I. 500 , 44 A. 931, 1899 R.I. LEXIS 116 (1899).

Collateral References.

Conclusiveness of order of civil arrest by one judge on another judge in the same case. 132 A.L.R. 81.

Parties’ right to arrest copartner. 21 A.L.R. 128, 58 A.L.R. 634, 168 A.L.R. 1088.

Personal injury, construction and applicability of statute authorizing arrest in civil action. 33 A.L.R. 648.

Validity, construction, and effect of body execution statutes allowing imprisonment based on judgment, debt, or the like — modern cases. 79 A.L.R.4th 232.

10-10-2. Form of writ from superior court.

An original writ of arrest issued from the superior court shall be substantially in the following form:

THE STATE OF RHODE ISLAND. SC. To the sheriffs of our several counties, or to their deputies, (SEAL) Greeting: We command you to arrest the body of of , if to be found in your precinct, and in safe custody keep, to answer the complaint of of on the return day hereof (said return day being the day of A.D. 20) in the SUPERIOR COURT to be holden at the county courthouse at , in an action of as by declaration to be filed in court will be fully set forth, to the damage of the plaintiff, as he or she says, dollars. Hereof fail not, and make true return of this writ with your doings thereon. Witness, the seal of our superior court, at this day of in the year . , Clerk.

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History of Section. C.P.A. 1905, § 508; G.L. 1909, ch. 299, § 12; G.L. 1923, ch. 349, § 12; G.L. 1938, ch. 559, § 2; G.L. 1956, § 10-10-2 ; P.L. 2021, ch. 77, § 10, effective June 23, 2021; P.L. 2021, ch. 78, § 10, effective June 23, 2021.

Compiler's Notes.

P.L. 2021, ch. 77, § 10, and P.L. 2021, ch. 78, § 10 enacted identical amendments to this section.

Rules of Court.

For form and service of writ of arrest, see Super. Ct. R. Civ. P. Rule 4(n).

Cross References.

Direction of writs, § 9-5-6 .

10-10-3. Form of writ from district court.

An original writ of arrest issued from a district court shall be substantially in the following form:

THE STATE OF RHODE ISLAND. SC. To the sheriff of the county of , his or her deputies, or to either of the town sergeants or constables in said county, (SEAL) Greeting: We command you to arrest the body of of , if to be found in your precinct, and in safe custody keep, to answer the complaint of of , (The remainder as in a writ of summons.)

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History of Section. C.P.A. 1905, § 509; G.L. 1909, ch. 299, § 13; G.L. 1923, ch. 349, § 13; G.L. 1938, ch. 559, § 3; G.L. 1956, § 10-10-3 ; P.L. 2021, ch. 77, § 10, effective June 23, 2021; P.L. 2021, ch. 78, § 10, effective June 23, 2021.

Compiler’s Notes.

P.L. 2021, ch. 77, § 10, and P.L. 2021, ch. 78, § 10 enacted identical amendments to this section.

Cross References.

Direction of writs, § 9-5-6 .

NOTES TO DECISIONS

Civil Process Only.

Criminal defendants’ reliance on the requirements of this section was misplaced because this section pertains to civil process. United States v. D'Alo, 486 F. Supp. 945, 1979 U.S. Dist. LEXIS 10552 (D.R.I. 1979).

10-10-4. Exemption of females from arrest on contract.

No female shall be arrested on original writ in any action founded on contract.

History of Section. C.P.A. 1905, § 597; G.L. 1909, ch. 302, § 1; G.L. 1923, ch. 352, § 1; G.L. 1938, ch. 560, § 1; G.L. 1956, § 10-10-4 .

NOTES TO DECISIONS

Legislative Intent.

The language of this section clearly shows a legislative intent to prohibit the arrest of any female in an action founded upon contract and not merely to grant a personal immunity which is waived by failure to claim and such an arrest is void upon its face. Lama v. Biltmore Furniture Co., 100 R.I. 255 , 214 A.2d 195, 1965 R.I. LEXIS 383 (1965).

10-10-5. Exemption of voters at time of elections.

No person entitled to vote shall be liable to arrest upon any civil process on the days of election of city or town officers, of state officers, representatives in congress, or of electors of president and vice-president of the United States, or on the day preceding or on the day following the election.

History of Section. C.P.A. 1905, § 598; G.L. 1909, ch. 302, § 2; G.L. 1923, ch. 352, § 2; G.L. 1938, ch. 560, § 2; G.L. 1956, § 10-10-5 .

Cross References.

General assembly members, exemption from civil process, § 22-4-2 .

Jurors, exemption from process, § 9-10-21 .

Persons entitled to vote, R.I. Const., art. II, § 1 .

10-10-6. Exemption of persons on military duty.

No officer, noncommissioned officer, or private shall be arrested on civil process while going to, or coming from, or remaining at any place which he or she shall have been ordered to attend for the election of any military officer or the performance of any military duty.

History of Section. C.P.A. 1905, § 599; G.L. 1909, ch. 302, § 3; G.L. 1923, ch. 352, § 3; G.L. 1938, ch. 560, § 3; G.L. 1956, § 10-10-6 .

Cross References.

Extension to merchant marine, § 30-22-2 .

Militiamen, immunity from arrest on civil process, § 30-7-2 .

NOTES TO DECISIONS

Officer Outside State.

A militia officer who is outside of the state is not within the protection of this section since he is not under the jurisdiction of his commanding officer. Manchester v. Manchester, 6 R.I. 127 , 1859 R.I. LEXIS 18 (1859).

10-10-7. Custody of person arrested.

Every officer who shall arrest any person by virtue of any writ of arrest, in a civil action, shall keep the person in safe custody until he or she is discharged pursuant to law.

History of Section. C.P.A. 1905, § 527; G.L. 1909, ch. 300, § 5; G.L. 1923, ch. 350, § 5; G.L. 1938, ch. 561, § 1; G.L. 1956, § 10-10-7 .

Cross References.

Fee for commitment on original writ or mesne process, § 9-29-9 .

NOTES TO DECISIONS

Prisoner.

Person imprisoned on sentence for criminal offense could not be arrested on civil process during such imprisonment. In re Harriott, 18 R.I. 12 , 25 A. 349, 1892 R.I. LEXIS 5 (1892).

10-10-8. Notation of cause of action on execution and commitment.

Every clerk of any court, issuing an execution against any person, shall note on the margin of the execution the cause of action on which the execution issued, to the end that the warden of the adult correctional institutions may ascertain whether the person, if committed, is entitled to the liberty of the jail yard, and every officer committing any person to correctional institutions on such execution shall note in his or her commitment the cause of action on which the execution is founded, according to the note or memorandum of the clerk.

History of Section. G.L. 1896, ch. 259, § 13; G.L. 1909, ch. 325, § 13; G.L. 1923, ch. 376, § 13; G.L. 1938, ch. 562, § 13; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-10-8 ; P.L. 1969, ch. 239, § 21.

10-10-9. Privileges allowed person committed in absence of memorandum.

If no memorandum as described in § 10-10-8 is made by the clerk on any execution, or if the officer shall not note the cause of action as provided in § 10-10-8 in his or her commitment, the warden of the adult correctional institutions shall be held harmless if he or she permits the person committed to have the liberty of the jail yard, or discharge him or her, on his or her producing a certificate of having taken the oath prescribed by law for poor debtors.

History of Section. G.L. 1896, ch. 259, § 14; G.L. 1909, ch. 325, § 14; G.L. 1923, ch. 376, § 14; G.L. 1938, ch. 562, § 14; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-10-9 ; P.L. 1969, ch. 239, § 21; P.L. 1997, ch. 326, § 32.

10-10-10. Validity of assignments made by prisoner.

All assignments, transfers, and conveyances of property made by a debtor during his or her imprisonment, for the payment or security of any debt, except that of the committing creditor, shall be utterly void, unless made for the benefit of all his or her creditors in proportion to their respective demands.

History of Section. G.L. 1896, ch. 259, § 15; G.L. 1909, ch. 325, § 15; G.L. 1923, ch. 376, § 15; G.L. 1938, ch. 562, § 15; G.L. 1956, § 10-10-10 .

Cross References.

Assignment for benefit of creditors, § 10-4-1 et seq.

10-10-11. Bonds and obligations not provided for void.

If any deputy sheriff, town sergeant, constable or the warden of the adult correctional institutions shall take or receive from any prisoner in his or her custody any bond, obligation, covenant, promise, or assurance whatsoever, to indemnify and save harmless the person taking the bond, obligation, covenant, promise, or assurance for the enlargement or ease of the prisoner, in any other form or manner than is prescribed by law for taking bail on mesne process in a civil action, or is prescribed in this chapter or chapter 12 of this title, every such bond, obligation, covenant, promise or assurance whatsoever, shall be utterly void.

History of Section. G.L. 1896, ch. 259, § 16; G.L. 1909, ch. 325, § 16; G.L. 1923, ch. 376, § 16; G.L. 1938, ch. 562, § 16; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-10-11 ; P.L. 2012, ch. 324, § 25.

10-10-12. Payment of prisoner’s board.

Whenever any person shall be imprisoned in or committed to the adult correctional institution upon original writ, mesne process, execution, or surrender or commitment by bail, in any action whatsoever, the party at whose suit the person is imprisoned, or committed for the benefit of or at the request of the United States of America shall pay to the warden of the institution in which he or she is imprisoned or committed the sum of two hundred ten dollars ($210), per week in advance for the board of the prisoner or person, reckoning the board from the time of the commitment; which payment in advance shall continue to be made by the creditor or the United States of America during the time the person shall be detained at his or her suit; provided, however, that in all cases in which any person shall be imprisoned under an original writ, mesne process, execution against the body or because of surrender or commitment by bail, in any suit in favor of the state and in all cases where the person is held in civil or criminal contempt by any court of the state, or any commitment under § 15-5-16 , no board need be demanded by or paid to the warden. Provided, further, however, that in all applicable cases of commitment, the party so committing shall pay the board in advance until one week after notice in writing of the commitment shall have been duly served upon the party, or his or her attorney of record, by any member of the division of sheriffs, or other duly qualified officer and lodged with the warden of the institution where the person is committed.

History of Section. G.L. 1896, ch. 259, § 1; C.P.A. 1905, § 1152; G.L. 1909, ch. 325, § 1; G.L. 1923, ch. 376, § 1; G.L. 1938, ch. 562, § 1; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-10-12 ; P.L. 1975, ch. 40, § 1; P.L. 1997, ch. 326, § 32; P.L. 2012, ch. 324, § 25.

NOTES TO DECISIONS

Divorce Cases.

This section does not require a wife to pay her husband’s board when committed for failure to pay support allowance ordered in a divorce proceeding. Ex parte Morey, 28 R.I. 242 , 66 A. 575, 1907 R.I. LEXIS 30 (1907).

Medium of Payment.

Delivery of a postal money order, where accepted by the jailer, constituted payment of board. Gingras v. Linscott, 44 R.I. 112 , 116 A. 195, 1922 R.I. LEXIS 13 (1922).

Payments by Bail.

Where committing bail paid board for longer period than required by the statute but where bail did not indicate that excess was on behalf of the creditor and jailer did not accept the excess as on behalf of the creditor, creditor could not claim credit for the excess so as to extend the time when next payment would be due. Casey v. Viall, 17 R.I. 348 , 21 A. 911, 1891 R.I. LEXIS 23 (1891).

10-10-13. Discharge of prisoner on default in board payments.

In case of default made in payment of the prisoner’s board, as required in § 10-10-12 , the warden shall discharge such prisoner from the institution, stating in his or her formal discharge on the records of the institution the reason for the discharge.

History of Section. G.L. 1896, ch. 259, § 2; G.L. 1909, ch. 325, § 2; G.L. 1923, ch. 376, § 2; G.L. 1938, ch. 562, § 2; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-10-13 .

10-10-14. Board payments as costs.

The amount thus paid by the creditor, for the board of the prisoner so imprisoned at his or her suit, shall be added to and form a part of the costs of commitment and detention; and as such costs, shall be paid by the prisoner in the then existing or any future proceedings which may be lawfully instituted against him or her for the recovery of the debt and costs of the suit against him or her.

History of Section. G.L. 1896, ch. 259, § 3; G.L. 1909, ch. 325, § 3; G.L. 1923, ch. 376, § 3; G.L. 1938, ch. 562, § 3; G.L. 1956, § 10-10-14 .

Chapter 11 Bail of Persons Imprisoned on Civil Process

10-11-1. Bail taken by arresting officer.

Every officer who shall so arrest any person pursuant to chapter 10 of this title, shall let the person arrested to bail, upon his or her giving sufficient surety for his or her appearance at the court to which such writ or process shall be returnable and to abide the final judgment which shall be rendered thereon.

History of Section. C.P.A. 1905, § 528; G.L. 1909, ch. 300, § 6; G.L. 1923, ch. 350, § 6; G.L. 1938, ch. 561, § 2; G.L. 1956, § 10-11-1 .

Cross References.

Admission to bail on habeas corpus, § 10-9-19 .

Bail of persons held on criminal process, § 12-13-4 et seq.

Fee for taking bail, § 9-29-9 .

Reduction of bail on habeas corpus, § 10-9-20 .

NOTES TO DECISIONS

Duty of Officer.

A reasonable opportunity to furnish bail should be given by the officer before committing defendant to jail, but officer is not required to travel about with a defendant under arrest to enable him to obtain bail. Page v. Staples, 13 R.I. 306 , 1881 R.I. LEXIS 21 (1881); Calderone v. Kiernan, 23 R.I. 578 , 51 A. 215, 1902 R.I. LEXIS 153 (1902).

Undertaking of Bail.

Bail’s undertaking is only as to defendant’s appearance in court, not for payment of judgment, so that after defendant is discharged in bankruptcy plaintiff is not entitled to a judgment to enable him to proceed against the bail. Rall Cotton Co. v. Terry, 49 R.I. 375 , 142 A. 619, 1928 R.I. LEXIS 71 (1928).

Collateral References.

Validity, construction, and effect of body execution statutes allowing imprisonment based on judgment, debt, or the like — modern cases. 79 A.L.R.4th 232.

10-11-2. Giving of bail bond.

Whoever shall become bail for any person may give bond to a member of the division of sheriffs, if the writ or process shall be served by the division of sheriffs; and if the writ or process shall be served by a town sergeant or constable, the bail bond in such case shall be given to the officer serving the writ or process.

History of Section. C.P.A. 1905, § 529; G.L. 1909, ch. 300, § 7; G.L. 1923, ch. 350, § 7; G.L. 1938, ch. 561, § 3; G.L. 1956, § 10-11-2 ; P.L. 2012, ch. 324, § 26.

10-11-3. Bail by indorsement of process.

Instead of giving bond as provided in § 10-11-2 , the person becoming bail may indorse his or her Christian name and surname on the back of the writ or process, which shall hold him or her as bail to the same extent as if he or she had executed and delivered a formal bail bond.

History of Section. C.P.A. 1905, § 530; G.L. 1909, ch. 300, § 8; G.L. 1923, ch. 350, § 8; G.L. 1938, ch. 561, § 4; G.L. 1956, § 10-11-3 ; P.L. 1997, ch. 326, § 74.

NOTES TO DECISIONS

Indorsement.

An indorsement of only the surname and the initials of the first and middle names will not subject the person making it to the statutory liability. Dresser, Bradt & Goodwin v. Fifield, 12 R.I. 24 , 1878 R.I. LEXIS 7 (1878).

Scire facias could not be maintained on the basis of a signature on a separate affidavit rather than on the writ as prescribed by this section. Aero Indus. Equip. Co. v. Chernick, 85 R.I. 373 , 132 A.2d 77, 1957 R.I. LEXIS 38 (1957).

10-11-4. Bail at any time before judgment — Counties other than Providence.

Every person committed to a correctional institution in any county, except the county of Providence, by virtue of an arrest on any writ or process in any civil action, or by surrender of former bail in the same action, shall be let to bail or to new bail, as the case may be, in manner before provided, at any time before the rendering of final judgment on the original writ on which the arrest was made.

History of Section. C.P.A. 1905, § 531; G.L. 1909, ch. 300, § 9; G.L. 1923, ch. 350, § 9; G.L. 1938, ch. 561, § 5; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-11-4 .

10-11-5. Bail in Providence county at any time before judgment.

Every person committed to a correctional institution in the county of Providence, on any writ or process in any civil action or by surrender of former bail in the same action, may be let to bail, or to new bail as the case may be, by the warden of the institution or by the officer who served the writ or process, at any time before final judgment shall be rendered on the writ on which the arrest was made, upon his or her giving sufficient surety for his or her appearance at the court to which such writ is returnable, and to abide the final judgment which shall be rendered thereon.

History of Section. C.P.A. 1905, § 532; G.L. 1909, ch. 300, § 10; G.L. 1923, ch. 350, § 10; G.L. 1938, ch. 561, § 6; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-11-5 .

10-11-6. Bond or indorsement in Providence county.

In case bail be taken by the warden, the person becoming bail shall give bond to the warden in a penal sum equal to the damages stated in the writ; but if bail be taken by the officer who served the writ, the person becoming bail may give such bond to the officer, or may indorse his or her Christian name and surname on the back of the writ or process, which shall hold him or her as bail as in other cases.

History of Section. C.P.A. 1905, § 533; G.L. 1909, ch. 3009, § 11; G.L. 1923, ch. 350, § 11; G.L. 1938, ch. 561, § 7; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-11-6 .

10-11-7. Discharge of bail by surrender of principal pending action.

Any person who shall become bail in any civil action, either by giving bail bond to the officer serving the writ therein or by indorsing the writ, or by giving bond to the warden of the adult correctional institutions, may, during the pendency of the action, discharge himself or herself as bail by bringing his or her principal into the court in which the action shall be pending and there delivering him or her into the custody of the court.

History of Section. G.L. 1896, ch. 258, § 1; G.L. 1909, ch. 324, § 1; G.L. 1923, ch. 375, § 1; G.L. 1938, ch. 565, § 1; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-11-7 .

NOTES TO DECISIONS

Criminal Cases.

This section did not apply to the surrender of the accused in a criminal case by the surety on a recognizance. State v. McGuire, 16 R.I. 519 , 17 A. 918, 1889 R.I. LEXIS 43 (1889).

Principal Arrested.

Right of bail to surrender his principal did not apply to a case where the principal was arrested on writ of ne exeat. In re Griswold, 13 R.I. 125 , 1880 R.I. LEXIS 55 (1880).

10-11-8. Discharge of bail before judgment.

A person may also, at any time before final judgment against him or her as bail, discharge himself or herself as bail in either of the two following modes:

  1. By committing his or her principal to a correctional institution in the county in which he or she became bail or in which the writ of arrest was returnable, paying or tendering to the creditor or his or her attorney the costs, if any, which shall have accrued on the action against him or her as bail, and leaving with the warden of the institution a certified copy of the writ of arrest and the return of the officer thereon, and a certified copy of the bond given to the officer serving the writ or given to the warden of the adult correctional institutions, if either of the bonds have been given, and giving to the plaintiff, if in this state, or his or her agent or his or her attorney of record, notice in writing of the time and place of the commitment within six (6) days after making the commitment; or,
  2. By bringing his or her principal into the court where the action against him or her as bail shall be pending, before final judgment shall be rendered thereon, after notice to the plaintiff or his or her attorney of record, paying the costs on the action against him or her as bail, the costs of the commitment of the principal and one week’s board at the institution and delivering his or her principal into the custody of court.

History of Section. G.L. 1896, ch. 258, § 2; C.P.A. 1905, § 1149; G.L. 1909, ch. 324, § 2; G.L. 1923, ch. 375, § 2; G.L. 1938, ch. 565, § 2; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-11-8 ; P.L. 1965, ch. 55, § 54.

NOTES TO DECISIONS

Entry of Judgment.

Entry of judgment for plaintiff on scire facias terminated the power of bail to discharge himself by completing the steps required by this section. Moran v. Goularte, 42 R.I. 112 , 105 A. 646, 1919 R.I. LEXIS 16 (1919).

Tender of Costs.

Liability for accrued costs includes costs that have been incurred by plaintiff, even though they have not yet been taxed by the court. Moran v. Goularte, 42 R.I. 112 , 105 A. 646, 1919 R.I. LEXIS 16 (1919).

Bail was not entitled to discharge under first method where he did not pay or tender costs before judgment on scire facias. Moran v. Goularte, 42 R.I. 112 , 105 A. 646, 1919 R.I. LEXIS 16 (1919).

10-11-9. Commitment of principal surrendered before judgment.

If the principal shall be so surrendered by his or her bail to the court in which the original action is pending, he or she shall be by such court committed to a correctional institution, and there remain to be taken in execution or to be discharged in the same manner as though committed for want of bail in the first instance, and he or she shall remain in the institution in like manner if committed by his or her bail before final judgment be rendered in the action.

History of Section. G.L. 1896, ch. 258, § 3; C.P.A. 1905, § 1150; G.L. 1909, ch. 324, § 3; G.L. 1923, ch. 375, § 3; G.L. 1938, ch. 565, § 3; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-11-9 .

10-11-10. Commitment of principal after judgment.

If the principal shall be committed by the bail to a correctional institution after the final judgment, or if, being surrendered by his or her bail to the court before which the action is pending against bail, he or she shall be committed by the court to a correctional institution, he or she shall there remain for the space of thirty (30) days, unless sooner discharged by order of law.

History of Section. G.L. 1896, ch. 258, § 4; G.L. 1909, ch. 324, § 4; G.L. 1923, ch. 375, § 4; G.L. 1938, ch. 565, § 4; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-11-10 ; P.L. 1965, ch. 55, § 54.

10-11-11. Discharge of principal on failure to take execution.

If the principal be not taken in execution within thirty (30) days after final judgment against him or her when committed for want of bail, or when committed by his or her bail or by the court to which his or her bail shall have surrendered him or her before such final judgment, or within thirty (30) days after he or she shall have been committed by his or her bail or by the court to which his or her bail shall have surrendered him or her, pending action against his or her bail, such principal shall be discharged from the correctional institution upon payment of prison fees. In computing the periods of time provided in this section, time during which execution is stayed shall not be included.

History of Section. G.L. 1896, ch. 258, § 5; G.L. 1909, ch. 324, § 5; G.L. 1923, ch. 375, § 5; G.L. 1938, ch. 565, § 5; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-11-11 ; P.L. 1965, ch. 55, § 54.

NOTES TO DECISIONS

New Execution.

Prisoner who was duly discharged under this section was not liable to imprisonment upon a fresh execution. Barnes v. Viall, 6 F. 661, 1881 U.S. App. LEXIS 2014 (C.C.D.R.I. 1881).

10-11-12. Death of principal discharging bail.

The death of the principal before the return day of the execution against him or her shall discharge the bail.

History of Section. G.L. 1896, ch 258, § 6; G.L. 1909, ch. 324, § 6; G.L. 1923, ch. 375, § 6; G.L. 1938, ch. 565, § 6; G.L. 1956, § 10-11-12 .

NOTES TO DECISIONS

Return Date.

This section shows that it is impossible to fix the liability of the bail before the return day of the execution. McAuliffe v. Lynch, 17 R.I. 410 , 22 A. 940, 1891 R.I. LEXIS 40 (1891).

10-11-13. Judgment against bail.

Whenever the principal shall avoid, so that his or her goods and chattels, real estate or other property subject to levy on execution, cannot be found to satisfy the execution, nor his or her body be found to be taken thereby, the plaintiff in the writ of arrest may bring a civil action against the bail in the same court wherein final judgment was rendered against the principal, and, in case no legal cause be shown to the contrary, judgment shall be given against the bail for the debt or damages and costs recovered against the principal, with interest and costs, and execution shall be awarded accordingly.

History of Section. G.L. 1896, ch. 258, § 7; G.L. 1909, ch. 324, § 7; G.L. 1923, ch. 375, § 7; G.L. 1938, ch. 565, § 7; G.L. 1956, § 10-13-13 ; P.L. 1965, ch. 55, § 54.

Rules of Court.

Scire facias abolished, see Super. Ct. R. Civ. P. Rule 81(c).

NOTES TO DECISIONS

Continuance.

Scire facias against a bail would not be continued because defendant had been sent for and was expected to be before the court the next term. Scheitlin v. Allen, 1 R.I. 286 , 1850 R.I. LEXIS 6 (1850).

Date of Liability.

The liability of a bail cannot be fixed before the return day of the execution so that a return non est inventus cannot be made before that date. McAuliffe v. Lynch, 17 R.I. 410 , 22 A. 940, 1891 R.I. LEXIS 40 (1891).

Execution Against Property.

Writ of scire facias would not lie against bail where sheriff tried only to arrest original defendant but not execute on defendant’s property. Kevorko v. Vaitkunas, 60 R.I. 295 , 198 A. 335, 1938 R.I. LEXIS 144 (1938).

Return.

The failure to return an execution on the return day did not discharge the bail where it was not contended the officer did not make diligent search for the required time and where the bail had not surrendered the defendant. C. H. Darling Co. v. Monahan, 51 R.I. 171 , 153 A. 366, 1931 R.I. LEXIS 19 (1931).

Service.

Service of a writ made by attaching defendant’s real estate 20 days before return day and by leaving with him an attested copy 18 days before return day did not satisfy requirements of this section. Kevorko v. Vaitkunas, 54 R.I. 8 , 168 A. 910, 1933 R.I. LEXIS 6 (1933).

10-11-14. Action against bail in superior court based on district court judgment.

The plaintiff in any suit in which judgment shall be rendered in the district court, and the amount of debt, costs and interest due upon the judgment of the district court shall exceed five thousand dollars ($5000), shall be entitled to maintain an action against the bail in the superior court for the county in which the judgment shall be rendered, in which action the proceedings shall be the same in all respects as if the judgment had been rendered in the court.

History of Section. G.L. 1896, ch. 258, § 8; C.P.A. 1905, § 1151; G.L. 1909, ch. 324, § 8; G.L. 1923, ch. 375, § 8; P.L. 1929, ch. 1331, § 11; G.L. 1938, ch. 565, § 8; G.L. 1956, § 10-11-14 ; P.L. 1965, ch. 55, § 54; P.L. 1969, ch. 239, § 22.

10-11-15. Period after judgment allowed for action against bail.

No action against the bail shall be commenced unless it is within two (2) years next after the entering up of final judgment against the principal; provided, that if by reason of the absence of the bail from the state, service of process could not have been made within the time before mentioned, the action may be commenced at any time within two (2) years next after the return of the bail into the state. In computing the periods of time provided in this section, time during which execution is stayed shall not be included.

History of Section. G.L. 1896, ch. 258, § 9; G.L. 1909, ch. 324, § 9; G.L. 1923, ch. 375, § 9; G.L. 1938, ch. 565, § 9; G.L. 1956, § 10-11-15 ; P.L. 1965, ch. 55, § 54.

NOTES TO DECISIONS

Accrual of Action.

The cause of action against a bail does not accrue until after the return of the execution, so that this statute begins to run at that time, rather than at the time of final judgment against the defendant. McAuliffe v. Lynch, 17 R.I. 410 , 22 A. 940, 1891 R.I. LEXIS 40 (1891).

10-11-16. Bail’s remedy against principal.

The bail may have remedy by a civil action against his or her principal for all damages sustained by his or her becoming bail.

History of Section. G.L. 1896, ch. 258, § 10; G.L. 1909, ch. 324, § 10; G.L. 1923, ch. 375, § 10; G.L. 1938, ch. 565, § 10; G.L. 1956, § 10-11-16 .

NOTES TO DECISIONS

Sheriff’s Liability.

A sheriff who releases a debtor on defective bail is liable for escape, rather than as bail, so that he does not have the remedy of bail against the debtor. Carpenter v. Fifield, 14 R.I. 73 , 1883 R.I. LEXIS 7 (1883).

Chapter 12 Liberty of Jail Yard

10-12-1. Repealed.

History of Section. G.L. 1896, ch. 259, § 4; G.L. 1909, ch. 325, § 4; G.L. 1923, ch. 376, § 4; G.L. 1938, ch. 562, § 4; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-12-1 ; P.L. 1965, ch. 55, § 55; P.L. 1997, ch. 326, § 33; Repealed by P.L. 2012, ch. 234, § 27, effective June 20, 2012.

Compiler’s Notes.

Former § 10-12-1 concerned power of sheriff or warden to grant liberty.

10-12-2. Repealed.

History of Section. G.L. 1896, ch. 259, § 5; G.L. 1909, ch. 325, § 5; G.L. 1923, ch. 376, § 5; G.L. 1938, ch. 562, § 5; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-12-2 ; Repealed by P.L. 2012, ch. 234, § 27, effective June 20, 2012.

Compiler’s Notes.

Former § 10-12-2 concerned bond to secure liberty.

10-12-3. Limits of jail yard.

The limits of each county shall be the limits of the jail yard of the county.

History of Section. G.L. 1896, ch. 259, § 17; G.L. 1909, ch. 325, § 17; G.L. 1923, ch. 376, § 17; G.L. 1938, ch. 562, § 17; G.L. 1956, § 10-12-3 .

10-12-4. Entry into places within yard.

Any person confined in any correctional institution who shall give bond as provided in § 10-12-2 may go into any building or place within the exterior limits of the yard, complying with the bond and conforming to law.

History of Section. G.L. 1896, ch. 259, § 6; G.L. 1909, ch. 325, § 6; G.L. 1923, ch. 376, § 6; G.L. 1938, ch. 562, § 6; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-12-4 ; P.L. 1997, ch. 326, § 33.

10-12-5. Assignment of property by person committed on execution.

No person committed on execution shall have the liberty of the prison yard for more than thirty (30) days after his or her commitment, unless he or she shall within the thirty (30) days execute an assignment of all his or her estate of every kind not exempted from attachment by law, and wherever the same may be, to the warden of the institution and his or her successor in the office, and his or her heirs and assigns, in trust for the equal benefit of all his or her creditors in proportion to their demands.

History of Section. G.L. 1896, ch. 259, § 7; G.L. 1909, ch. 325, § 7; G.L. 1923, ch. 376, § 7; G.L. 1938, ch. 562, § 7; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-12-5 .

NOTES TO DECISIONS

Number of Assignments.

A debtor who was committed on two executions issued the same day has complied with the provisions of this section if within 30 days of his commitment he executes only one assignment for the benefit of creditors. Farrington v. Allen, 6 R.I. 449 , 1860 R.I. LEXIS 14 (1860).

Remedy for Escape.

Where defendant commits escape by failure to render himself to the keeper or to make an assignment within 30 days, the remedy is either by commitment under a new execution or by suit on the bond. In re McManaman, 16 R.I. 358 , 16 A. 148, 1888 R.I. LEXIS 64 (1888).

Schedules With Assignment.

The provisions of § 10-4-2 as to the filing of a schedule of assets and list of creditors do not apply to assignments pursuant to this section. Andrews v. Reynolds, 45 R.I. 74 , 120 A. 61, 1923 R.I. LEXIS 23 (1923).

Time of Assignment.

Period for making of assignment is measured from original commitment and was not extended by surrender of debtor and giving of new bond. Church v. Proctor, 5 R.I. 20 , 1857 R.I. LEXIS 3 (1857).

10-12-6. Warden’s responsibility on assignment.

The warden receiving an assignment as provided in § 10-12-5 shall not be held responsible to any person for any property of any assignor, except such as he or she has actually received into his or her possession; provided, he or she shall assign all the interest he or she shall obtain thereby to the committing creditor, if a resident of this state, upon his or her request, or to such person, being a resident thereof, as the creditor shall name, to be held by the creditor or person so named, his or her heirs, executors, administrators and assigns, for the purposes and uses set forth in the deed, and a record of the assignment and of the transfers shall be made by the warden.

History of Section. G.L. 1896, ch. 259, § 8; G.L. 1909, ch. 325, § 8; G.L. 1923, ch. 376, § 8; G.L. 1938, ch. 562, § 8; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-12-6 ; P.L. 1997, ch. 326, § 33.

10-12-7. Failure to report or assign to warden deemed an escape.

If any person so committed shall neglect to render himself or herself to the warden of the institution, in the institution, within thirty (30) days, or make an assignment as provided in § 10-12-5 , he or she shall be deemed to have committed an escape under his or her bond for the liberty of the jail yard.

History of Section. G.L. 1896, ch. 259, § 9; G.L. 1909, ch. 325, § 9; G.L. 1923, ch. 376, § 9; G.L. 1938, ch. 562, § 9; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-12-7 ; P.L. 1997, ch. 326, § 33.

NOTES TO DECISIONS

Escape.

Where defendant did not make an assignment or render himself to the keeper of the jail within 30 days, he committed an escape, could be recommitted under a new execution, and was not entitled to another bond for liberty of the jail yard. In re McManaman, 16 R.I. 358 , 16 A. 148, 1888 R.I. LEXIS 64 (1888).

10-12-8. Repealed.

History of Section. G.L. 1896, ch. 259, § 10; G.L. 1909, ch. 325, § 10; G.L. 1923, ch. 376, § 10; G.L. 1938, ch. 562, § 10; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-12-8 ; P.L. 1997, ch. 326, § 33; Repealed by P.L. 2012, ch. 234, § 27, effective June 20, 2012.

Compiler’s Notes.

Former § 10-12-8 concerned surrender of principal by surety on jail yard bond.

10-12-9. Judgment on jail yard bond.

If the creditor shall obtain judgment on the bond for the breach of the condition thereof, he or she shall recover his or her just debt, with interest from the time judgment was rendered in the original suit, and twelve percent (12%) interest on the debt for his or her damages, and the court shall render judgment on the debt accordingly.

History of Section. G.L. 1896, ch. 259, § 11; G.L. 1909, ch. 325, § 11; G.L. 1923, ch. 376, § 11; G.L. 1938, ch. 562, § 11; G.L. 1956, § 10-12-9 .

10-12-10. Limitation of actions on jail yard bond.

No action shall be maintained for the breach of any bond given for the liberty of the jail yard as provided in § 10-12-2 , unless the action is brought within one year after the time the breach was committed.

History of Section. G.L. 1896, ch. 259, § 12; G.L. 1909, ch. 325, § 12; G.L. 1923, ch. 376, § 12; G.L. 1938, ch. 562, § 12; G.L. 1956, § 10-12-10 ; P.L. 1997, ch. 326, § 33.

NOTES TO DECISIONS

Multiple Breaches.

Where a bond given for the liberty of the jail yard is broken on two different occasions, the period of limitations begins to run at the time of the first breach, whether or not the creditor knew of the first breach. Pearce v. Curran, 15 R.I. 298 , 3 A. 419, 1886 R.I. LEXIS 19 (1886).

Chapter 13 Relief of Poor Debtors

10-13-1. Application to take poor debtor’s oath.

Except as is otherwise provided by § 10-13-2 , any person who shall be imprisoned for debt whether on a writ of arrest issued at the commencement of an action, mesne process, or execution, or on execution awarded against him or her as defendant in any action to recover the possession of land or trespass to land, in which title to the land was in dispute between the parties, may complain to the justice of any district court in the county where the person shall be committed that he or she has no estate, real or personal, wherewith to support himself or herself in a correctional institution or to pay institution charges and may request to be admitted to take the poor debtor’s oath.

History of Section. G.L. 1896, ch. 260, § 1; C.P.A. 1905, § 1153; G.L. 1909, ch. 326, § 1; G.L. 1923, ch. 377, § 1; G.L. 1938, ch. 563, § 1; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-13-1 ; P.L. 1965, ch. 55, § 56.

Cross References.

Constitutional provision as to relief of debtors, R.I. Const., Art. I, § 11 .

Marginal notation on execution as to cause of action, § 10-10-8 .

Comparative Legislation.

Examination of debtor:

Mass. Ann. Laws ch. 224, §§ 15, 16.

NOTES TO DECISIONS

Alimony.

Husband imprisoned for failure to pay alimony pendente lite, as ordered by court, was not simply imprisoned for debt, so could not be admitted to oath. Mowry v. Bliss, 28 R.I. 114 , 65 A. 616, 1907 R.I. LEXIS 5 (1907).

Appeal and Review.

A bill of exceptions cannot be maintained as to determination of justice on petition of debtor to take poor debtor’s oath. In re Harkness, 27 R.I. 124 , 60 A. 1067, 1905 R.I. LEXIS 44 (1905).

Bankruptcy Act.

Poor debtor’s act was not suspended or superseded by the National Bankrupt Act of 1867. Jordan, Marsh & Co. v. Hall, 9 R.I. 218 , 1869 R.I. LEXIS 14 (1869).

Construction With Other Sections.

The relief authorized by this section may not be granted to persons excluded by § 10-13-2 , even though the plaintiff’s claim has been reduced to judgment. Taylor v. Bliss, 26 R.I. 16 , 57 A. 939, 1904 R.I. LEXIS 4 (1904).

Plaintiff Committed.

A plaintiff committed for costs is entitled to the relief given by the statute if he otherwise qualifies. Thompson v. Berry, 5 R.I. 95 , 1858 R.I. LEXIS 1 (1858).

Special Statute.

A special act conferring jurisdiction upon the court to administer the oath to a particular tort debtor was not an unconstitutional exercise of judicial power, nor did it invade the jurisdiction of the courts, impair the obligation of contract or deny a remedy for injuries. In re Nichols, 8 R.I. 50 , 1864 R.I. LEXIS 9 (1864).

Tort Claims.
— After Judgment.

Judgment debtor in an action on the case for negligence may apply to take the oath under this section and need not wait for the period specified by § 10-13-27 . In re Kimball, 20 R.I. 688 , 41 A. 230, 1898 R.I. LEXIS 149 (1898).

— Before Judgment.

A defendant committed on mesne process for want of bail in action for deceit was not entitled to take oath as he was not imprisoned for debt. In re Payton, 7 R.I. 153 , 1862 R.I. LEXIS 7 (1862).

A claim for damages for a tort is not a debt, within the meaning of this section, before judgment. Smith v. Superior Court, 42 R.I. 246 , 106 A. 305, 1919 R.I. LEXIS 23 (1919).

Who May Take Oath.

Where defendant was imprisoned after being ordered to pay $3,100 judgment in a suit brought to recover unpaid balance due on a promissory note, it was proper to allow defendant to take debtor’s oath and be released from prison any time after commitment. White v. Tenth Dist. Court, 105 R.I. 314 , 251 A.2d 539, 1969 R.I. LEXIS 758 (1969).

Collateral References.

Arrest under body execution and discharge under Poor Debtors’ Act as a satisfaction of the debt. 14 A.L.R. 505.

10-13-2. Persons not entitled to take oath.

No person who shall be committed on execution awarded against him or her as plaintiff in replevin or as defendant in any action on a penal statute or in any action for conversion or detention of personal property, or for any malicious injury to the person, health or reputation of the plaintiff in such suit, or for seduction, or for any trespass, excepting only such as are particularly named in § 10-13-1 , shall be deemed to be within the meaning of the provisions of that section or entitled to be admitted to take the oath as provided in § 10-13-1 .

History of Section. G.L. 1896, ch. 260, § 10; G.L. 1909, ch. 326, § 10; G.L. 1923, ch. 377, § 10; G.L. 1938, ch. 563, § 10; G.L. 1956, § 10-13-2 ; P.L. 1965, ch. 55, § 56; P.L. 1997, ch. 326, § 34.

NOTES TO DECISIONS

Actions of Trespass.

Judgment debtor in action of trespass for wrongful death is not entitled to privilege and benefit of the poor debtor’s oath. Read v. Dunn, 48 R.I. 437 , 138 A. 210, 1927 R.I. LEXIS 72 (1927).

Construction With Other Sections.

This section limits § 10-13-1 . Taylor v. Bliss, 26 R.I. 16 , 57 A. 939, 1904 R.I. LEXIS 4 (1904).

Malicious Injury.

A judgment debtor in an action for malicious alienation of affection is excluded by this section from taking the oath. Taylor v. Bliss, 26 R.I. 16 , 57 A. 939, 1904 R.I. LEXIS 4 (1904).

Defendant in action for deceit was not barred from taking poor debtor’s oath by provision excepting cases of malicious injury. Taylor-Symonds Co. v. Bliss, 30 R.I. 453 , 76 A. 1, 1910 R.I. LEXIS 38 (1910).

Slander.

Judgment debtor in action of slander was barred from taking poor debtor’s oath under provisions of this section but was entitled to take poor tort debtor’s oath after the period prescribed by § 10-13-27 . Minikowsky v. Bliss, 36 R.I. 294 , 90 A. 209, 1914 R.I. LEXIS 24 (1914).

Trespass on the Case.

Execution debtor in action of trespass on the case was not excluded by this section from taking the oath. Rosen v. Bliss, 30 R.I. 555 , 76 A. 644, 1910 R.I. LEXIS 56 (1910).

10-13-3. Citation to creditor to show cause against debtor’s oath.

The justice shall forthwith issue a citation to the creditor, if within this state, or if the creditor does not live within this state, then to his or her agent or attorney of record within this state, or if he or she has no agent or attorney, then to the creditor without the state, to appear at the time and place as the justice shall appoint, to show cause, if any he or she have, why the person complaining as provided in § 10-13-1 should not be admitted to take the poor debtor’s oath.

History of Section. G.L. 1896, ch. 260, § 2; G.L. 1909, ch. 326, § 2; G.L. 1923, ch. 377, § 2; G.L. 1938, ch. 563, § 2; G.L. 1956, § 10-13-3 ; P.L. 1997, ch. 326, § 34.

10-13-4. Service of citation on creditor.

The citation shall be served on the creditor, his or her agent or attorney as provided in § 10-13-3 , seven (7) days at least before the time appointed as provided in § 10-13-3 , by reading the citation to him or her, or by leaving an attested copy with some person living at his or her last and usual place of abode, by a member of the division of sheriffs or either of the town sergeants or constables in the county in which the creditor, his or her agent or attorney, shall reside. If the creditor does not live or have any agent or attorney within this state, the service shall be made upon the creditor by any disinterested person.

History of Section. G.L. 1896, ch. 260, § 3; G.L. 1909, ch. 326, § 3; G.L. 1923, ch. 377, § 3; G.L. 1938, ch. 563, § 3; G.L. 1956, § 10-13-4 ; P.L. 1997, ch. 326, § 34; P.L. 2012, ch. 324, § 28.

10-13-5. Citations to state as creditor.

Every person imprisoned or liable to be imprisoned in any suit in favor of the state, entitled to the oath prescribed in § 10-13-8 , may apply for and have a citation to the state, to show cause why he or she should not be admitted to take the debtor’s oath.

History of Section. G.L. 1896, ch. 260, § 25; G.L. 1909, ch. 326, § 25; G.L. 1923, ch. 377, § 25; G.L. 1938, ch. 563, § 25; G.L. 1956, § 10-13-5 .

10-13-6. Service of citation on attorney general.

The citation described in § 10-13-5 shall be issued to and served upon the attorney general, in the same manner and with the same effect as is provided in the case of creditors other than the state.

History of Section. G.L. 1896, ch. 260, § 26; G.L. 1909, ch. 326, § 26; G.L. 1923, ch. 377, § 26; G.L. 1938, ch. 563, § 26; G.L. 1956, § 10-13-6 ; P.L. 1997, ch. 326, § 34.

10-13-7. Administration of oath — Assignment of estate.

The justice of any district court in the county where the prisoner is committed may at the time and place appointed examine the return of the citation, and if it shall appear to have been duly served, may administer the oath prescribed in § 10-13-8 to the party imprisoned as provided in § 10-13-5 , if, after fully examining the prisoner under oath and hearing the parties, the justice shall think it proper so to do; provided, the applicant shall then and there first make and execute a deed of assignment of all his or her estate of every kind and wherever the estate may be, except what is exempted from attachment by law, other than debts secured by bills of exchange or negotiable promissory notes, to the warden and his or her successor in his or her office and his or her heirs and assigns, in trust for the benefit of all his or her creditors in proportion to their respective demands.

History of Section. G.L. 1896, ch. 260, § 4; C.P.A. 1905, § 1233; G.L. 1909, ch. 326, § 4; G.L. 1923, ch. 377, § 4; G.L. 1938, ch. 563, § 4; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-13-7 ; P.L. 1997, ch. 326, § 34.

NOTES TO DECISIONS

Administration of Oath.

Administration of oath by clerk of district court while justice was out of the district was not authorized as statute authorizing the clerk to act in absence of the justice applied only to duties relating to the district and administration of such oath could be made by judge anywhere in the county. Wilcox v. Crowell, 16 R.I. 707 , 19 A. 329, 1890 R.I. LEXIS 9 (1890).

Effect of Assignment.

Assignment by debtor of “all my estate, both real and personal, not exempt from attachment by law” included every equitable as well as legal interest of the assigning debtor not exempt from attachment. Tillinghast v. Bradford, 5 R.I. 205 , 1858 R.I. LEXIS 14 (1858).

Fraudulent Conveyances.

An assignment which preferred certain creditors made after citation to committing creditor and before statutory assignment is void, so that payment of a debt to the official assignee is a discharge of the debt. Steward v. Franklin Foundry & Mach. Co., 5 R.I. 381 , 1858 R.I. LEXIS 51 (1858).

Where debtor had, since commencement of the action, made a conveyance in fraud of creditors, record of trial court admitting the debtor to the oath and the certificate of the justice as to the oath would be quashed on certiorari to the supreme court. Fainardi v. Dunn, 46 R.I. 344 , 128 A. 207, 1925 R.I. LEXIS 18 (1925).

Hearing of Citation.

After the debtor takes out the process, he should take all reasonable means to have it properly heard and if he fails to do this he must be deemed to have abandoned it. Cushing & Walling v. Briggs, 2 R.I. 139 , 1852 R.I. LEXIS 17 (1852).

Prohibition.

Prohibition would lie to prevent the justice from taking further proceedings in a case where administration of the oath was not authorized. Taylor v. Bliss, 26 R.I. 16 , 57 A. 939, 1904 R.I. LEXIS 4 (1904).

10-13-8. Form of debtor’s oath.

The oath to be administered in such a case shall be as follows: “I do solemnly swear (or affirm) that I have not any estate, real or personal, in possession, remainder, or reversion over $ 10.00 (or except what is exempt from attachment by law not herein enumerated) nor any debts secured by bills of exchange or negotiable promissory notes, and that I have not, since the commencement of this suit against me or at any other time, directly or indirectly, sold, leased, or otherwise conveyed or disposed of to, or intrusted any person or persons whomsoever with, all or any part of the estate, real or personal, whereof I have been the lawful owner or possessor, with any intent or design to secure the property or to receive or to expect any profit or advantage therefrom for myself or for any of my children or family or any other person, or have caused or suffered to be done anything else whatsoever whereby any of my creditors may be defrauded, so help me God (or this affirmation I make and give upon peril of the penalty of perjury)”.

History of Section. G.L. 1896, ch. 260, § 5; G.L. 1909, ch. 326, § 5; G.L. 1923, ch. 377, § 5; G.L. 1938, ch. 563, § 5; G.L. 1956, § 10-13-8 .

NOTES TO DECISIONS

“Against Me”.

When the oath is administered to a plaintiff committed for costs, the words “against me” referring to the suit should be omitted. Thompson v. Berry, 5 R.I. 95 , 1858 R.I. LEXIS 1 (1858).

10-13-9. Certificate of justice as to oath.

The oath being administered and taken by the prisoner, the justice shall deliver to him or her a certificate thereof under, his or her hand and seal, in the following form:

To warden of the correctional institution at in the county of I, the subscriber, authorized by the statute in such case made and provided, do certify that a poor prisoner confined upon mesne process (or otherwise, as the case may be) in the correctional institution at aforesaid, has caused the party at whose suit he or she was so confined, to be notified according to law, of his or her the said desire of being admitted to take the poor debtor’s oath; that in my opinion the said has not any estate, either real or personal, except what is exempt from attachment by law (or, over $10.00, as the case may be), and that he or she has not conveyed or concealed his or her estate with design to secure the same to his or her own use or to defraud his or her creditors; and that I have, after due caution to the said administered to him or her the oath (or, affirmation,) prescribed by law to be administered to poor debtors. Witness, my hand and seal, this day of A.D., Justice of the District Court of the Judicial District.

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History of Section. G.L. 1896, ch. 260, § 6; C.P.A. 1905, § 1154; G.L. 1909, ch. 326, § 6; G.L. 1923, ch. 377, § 6; G.L. 1938, ch. 563, § 6; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-13-9 .

NOTES TO DECISIONS

Certificate as Evidence.

A certificate given in the form prescribed by the statute is not conclusive evidence that a citation was issued or duly served upon the creditor, but is prima facie evidence only. Brown v. Foster, 6 R.I. 564 , 1860 R.I. LEXIS 35 (1860).

10-13-10. Discharge of prisoner.

Whenever any prisoner shall present a certificate, as is prescribed in § 10-13-9 , to the warden of the institution in which he or she is imprisoned, the warden shall immediately discharge him or her from his or her commitment at the suit of the creditor named in the certificate.

History of Section. G.L. 1896, ch. 260, § 7; G.L. 1909, ch. 326, § 7; G.L. 1923, ch. 377, § 7; G.L. 1938, ch. 563, § 7; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-13-10 .

NOTES TO DECISIONS

Discharge Mandatory.

Upon production of a proper certificate from a magistrate having jurisdiction of the case, the jailer must discharge the prisoner as he has no discretion and is not required to look beyond the certificate so long as the magistrate had jurisdiction. Barry v. Viall, 12 R.I. 18 , 1878 R.I. LEXIS 3 (1878).

10-13-11. Detainment for fees prohibited.

No person who has been admitted to take the oath as provided in § 10-13-8 shall be retained in a correctional institution for the prison fees or for the fees of the justice before whom he or she may have taken such oath.

History of Section. G.L. 1896, ch. 260, § 8; G.L. 1909, ch. 326, § 8; G.L. 1923, ch. 377, § 8; G.L. 1938, ch. 563, § 8; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-13-11 ; P.L. 1997, ch. 326, § 34.

10-13-12. Responsibility of warden for property — Assignment to or on direction of creditor.

No warden of any institution receiving an assignment under § 10-13-7 shall be held responsible to any person for any property of any assignor, except such as he or she has actually received into his or her possession; provided, that he or she shall assign all the interest he or she shall obtain thereby to the committing creditor, if a resident of this state, on his or her request, or to such person, being a resident thereof, as the creditor shall name, to be held by the creditor or person, his or her heirs, executors, administrators and assigns, for the purposes and trusts set forth in the deed.

History of Section. G.L. 1896, ch. 260, § 9; G.L. 1909, ch. 326, § 9; G.L. 1923, ch. 377, § 9; G.L. 1938, ch. 563, § 9; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-13-12 .

10-13-13. Second citation to creditor by debtor not admitted to oath.

If a debtor take out a citation to his or her committing creditor and have the citation served and subsequently withdraw the citation, or if upon trial he or she shall not be admitted to take the oath prescribed in § 10-13-8 , he or she shall not be entitled to another citation to the same creditor unless on proof of some change of circumstances after the taking out of the first citation, a statement of which change of circumstances shall be annexed to, or cited in, the second citation and form a part thereof.

History of Section. G.L. 1896, ch. 260, § 11; G.L. 1909, ch. 326, § 11; G.L. 1923, ch. 377, § 11; G.L. 1938, ch. 563, § 11; G.L. 1956, § 10-13-13 ; P.L. 1997, ch. 326, § 34.

NOTES TO DECISIONS

Change of Circumstances.

Decision of the magistrate to whom petition is made for a second citation that a change has occurred which warrants issuance of the citation gives him jurisdiction over the creditor, and such decision cannot be collaterally attacked. Angell v. Robbins, 4 R.I. 493 , 1857 R.I. LEXIS 27 (1857).

A second citation is void unless the debtor shows a change of circumstances which might affect the previous decision. Eastwood v. Schroeder, 5 R.I. 388 , 1858 R.I. LEXIS 54 (1858).

The second citation need not recite the proof of the change of circumstances so long as it does state the change itself. Burdick & Barrett v. Simmons, 9 R.I. 17 , 1868 R.I. LEXIS 4 (1868).

— Assignments.

A valid assignment for the benefit of creditors is such a change in circumstances of the debtor as to justify a second citation. Burdick & Barrett v. Simmons, 9 R.I. 17 , 1868 R.I. LEXIS 4 (1868); Matteson v. Choquet, 36 R.I. 271 , 90 A. 161, 1914 R.I. LEXIS 21 (1914); Carlin v. Easton, 51 R.I. 421 , 155 A. 527, 1931 R.I. LEXIS 74 (1931); Di Iorio v. Easton, 53 R.I. 429 , 167 A. 137, 1933 R.I. LEXIS 123 (1933).

Fraudulent conveyance by debtor would have no bearing on allegation of change of circumstances, so would not deprive court of jurisdiction to hear second citation and is not proper ground for certiorari or writ of prohibition. Matteson v. Choquet, 36 R.I. 271 , 90 A. 161, 1914 R.I. LEXIS 21 (1914); Di Iorio v. Easton, 53 R.I. 429 , 167 A. 137, 1933 R.I. LEXIS 123 (1933).

— Form of Commitment.

The mere fact that at the time of the debtor’s first citation he was committed upon a writ and at the time of his petition for a second citation he was committed upon execution in the same suit is not a change of circumstances which warrants issuance of the second citation. Eastwood v. Schroeder, 5 R.I. 388 , 1858 R.I. LEXIS 54 (1858).

— Lapse of Time.

An applicant may have a new citation even though the alleged change of circumstances due to long continued sickness in the family was the same as alleged in a previous application two years before, since the lapse of time in such a case would be an element in determining whether or not a change of circumstances had occurred. Watson v. Fairbrother, 7 R.I. 511 , 1863 R.I. LEXIS 22 (1863).

— Method of Examination and Proof.

The examining magistrate has discretion to regulate the mode of examination and may, before entering into a full hearing, require that the applicant first show that there has been some change of circumstances. In re Ballou, 7 R.I. 466 , 1863 R.I. LEXIS 15 (1863).

The mode and sufficiency of proof of change in circumstances is left to the discretion of the judge. Burdick & Barrett v. Simmons, 9 R.I. 17 , 1868 R.I. LEXIS 4 (1868).

Denial of Insolvency as Bar.

Justice properly required showing of a change in circumstances since denial by supreme court of an application for benefit of the insolvency act. In re Ballou, 7 R.I. 466 , 1863 R.I. LEXIS 15 (1863).

Dismissal for Want of Jurisdiction.

Dismissal of a citation for want of jurisdiction does not bar a second citation, without alleging change of circumstances, after the jurisdictional defect has been removed. In re Nichols, 8 R.I. 50 , 1864 R.I. LEXIS 9 (1864).

Number of Citations.

The statute did not limit an applicant to two citations to the same creditor but required only a change of circumstances since the last previous application was denied. Watson v. Fairbrother, 7 R.I. 511 , 1863 R.I. LEXIS 22 (1863).

Withdrawal of Citation.

A debtor withdrew his citation and could not have the benefit of a new citation without showing a change of circumstances where after a postponement he submitted to examination by justices other than those who commenced the examination. Cushing & Walling v. Briggs, 2 R.I. 139 , 1852 R.I. LEXIS 17 (1852).

If no further proceedings are held after the issuance of a citation because of insufficient time of notice, the citation is not withdrawn in the sense of the statute and the debtor is not precluded from having another citation issued. Angell v. Robbins, 4 R.I. 493 , 1857 R.I. LEXIS 27 (1857).

— Tort Debtors.

Failure of petitioner for poor tort debtor’s oath to appear at hearing was not a withdrawal of citation within the meaning of this section where justice did not issue habeas corpus under § 10-13-28 . Ilczyszyn v. Choquet, 39 R.I. 496 , 99 A. 10, 1916 R.I. LEXIS 61 (1916).

10-13-14. Administration of debtor’s oath pending original action.

The court before which any action is pending for the recovery of any debt or demand for which the defendant, if committed to a correctional institution thereon, would be entitled to be admitted to take the oath as provided in § 10-13-8 , may administer the oath to the defendant as provided in this chapter.

History of Section. G.L. 1896, ch. 260, § 12; C.P.A. 1905, § 1234; G.L. 1909, ch. 326, § 12; G.L. 1923, ch. 377, § 12; G.L. 1938, ch. 563, § 12; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-13-14 ; P.L. 1997, ch. 326, § 34.

NOTES TO DECISIONS

Debt or Demand.

The words “debt or demand” in this section include only those actions enumerated in § 10-13-1 . Smith v. Superior Court, 42 R.I. 246 , 106 A. 305, 1919 R.I. LEXIS 23 (1919).

A claim for deceit is not a debt before judgment, so a defendant in an action thereon may not take the debtor’s oath before judgment. Smith v. Superior Court, 42 R.I. 246 , 106 A. 305, 1919 R.I. LEXIS 23 (1919).

10-13-15. Citation to show cause against oath by defendant.

The defendant in such case may apply to the court in which the action is pending for a citation to the creditor to appear at the court to show cause why the defendant should not be admitted to take the oath.

History of Section. G.L. 1896, ch. 260, § 13; C.P.A. 1905, § 1155; G.L. 1909, ch. 326, § 13; G.L. 1923, ch. 377, § 13; G.L. 1938, ch. 563, § 13; G.L. 1956, § 10-13-15 .

NOTES TO DECISIONS

Time for Show Cause.

The time in which defendant may make application to the court in which the action is pending is limited to the period preceding issuance of execution against him. Taylor-Symonds Co. v. Bliss, 30 R.I. 453 , 76 A. 1, 1910 R.I. LEXIS 38 (1910).

10-13-16. Service of citation.

The citation shall be served by any deputy sheriff, town sergeant, or constable, at least four (4) days before the time therein appointed for taking the oath, by reading the citation to the plaintiff or by leaving an attested copy thereof at his or her last and usual place of abode in this state, with some person living there, and the citation shall be returned to the court in which the action is pending. If the plaintiff does not reside in this state, service of the citation may be made in like manner upon the agent or attorney of record of the plaintiff in this state.

History of Section. G.L. 1896, ch. 260, § 14; C.P.A. 1905, § 1156; G.L. 1909, ch. 326, § 14; G.L. 1923, ch. 377, § 14; G.L. 1938, ch. 563, § 14; G.L. 1956, § 10-13-16 ; P.L. 2012, ch. 324, § 28.

10-13-17. Examination of defendant and administration of oath.

If it shall appear to the court in which the action is pending that notice has been given as provided in § 10-13-16 , the court shall examine the defendant on his or her oath concerning his or her estate and effects and the disposal thereof and may also receive any other evidence offered by the defendant or by the plaintiff, and upon the examination the court may, in its discretion, administer to the defendant the oath.

History of Section. G.L. 1896, ch. 260, § 15; C.P.A. 1905, § 1234; G.L. 1909, ch. 326, § 15; G.L. 1923, ch. 377, § 15; G.L. 1938, ch. 563, § 15; G.L. 1956, § 10-13-17 ; P.L. 1997, ch. 326, § 34.

10-13-18. Effect of execution after debtor’s oath.

If the debtor’s oath be administered, the execution which may be issued against the defendant in the action shall run against the goods and chattels or real estate of the defendant and not against his or her body.

History of Section. G.L. 1896, ch. 260, § 16; G.L. 1909, ch. 326, § 16; G.L. 1923, ch. 377, § 16; G.L. 1938, ch. 563, § 16; G.L. 1956, § 10-13-18 .

NOTES TO DECISIONS

Applicability.

The provisions of this section refer to an execution to be issued and do not purport to include a case where an execution has already been issued. Taylor-Symonds Co. v. Bliss, 30 R.I. 453 , 76 A. 1, 1910 R.I. LEXIS 38 (1910).

Discharge From Prison.

Discharge of debtor from prison did not extinguish the creditor’s judgment against the debtor but only the property of the debtor was liable thereafter and not the body of the debtor. Hidden v. Saunders, 2 R.I. 391 , 1853 R.I. LEXIS 4 (1853).

10-13-19. Application for oath after judgment and before commitment.

Every defendant in any execution, who would, if committed to a correctional institution thereon, and every person against whom final judgment has been rendered in any civil action, who would, if committed to a correctional institution on execution to be issued thereon, be entitled to be admitted to take the oath as provided in this chapter, may apply in the manner as provided in this chapter, for a citation to his or her creditor to show cause why he or she should not be admitted to take the debtor’s oath.

History of Section. G.L. 1896, ch. 260, § 17; G.L. 1909, ch. 326, § 17; G.L. 1923, ch. 377, § 17; G.L. 1938, ch. 563, § 17; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-13-19 ; P.L. 1997, ch. 326, § 34.

NOTES TO DECISIONS

Action for Deceit.

Defendant in action for deceit was entitled to take oath under this section where execution had been issued but he had not yet been taken under such execution. Taylor-Symonds Co. v. Bliss, 30 R.I. 453 , 76 A. 1, 1910 R.I. LEXIS 38 (1910).

10-13-20. Service of citation.

The citation as described in § 10-13-19 shall be served in the same manner as is provided in § 10-13-16 .

History of Section. G.L. 1896, ch. 260, § 18; G.L. 1909, ch. 326, § 18; G.L. 1923, ch. 377, § 18; G.L. 1938, ch. 563, § 18; G.L. 1956, § 10-13-20 ; P.L. 1997, ch. 326, § 34.

10-13-21. Administration of oath.

Upon the return of the citation, the magistrate authorized to administer the oath by § 10-13-7 , in the county in which the defendant is liable to be imprisoned, may administer the oath to the defendant, if upon examination of the defendant on oath, and of such other evidence as either party may produce, he or she shall think proper.

History of Section. G.L. 1896, ch. 260, § 19; G.L. 1909, ch. 326, § 19; G.L. 1923, ch. 377, § 19; G.L. 1938, ch. 563, § 19; G.L. 1956, § 10-13-21 .

NOTES TO DECISIONS

Review.

Jurisdiction to administer the poor debtor’s oath was not subject to review upon bill of exceptions as such proceedings were supplementary or ancillary suits. In re Harkness, 27 R.I. 124 , 60 A. 1067, 1905 R.I. LEXIS 44 (1905).

10-13-22. Effect of execution after oath.

If the defendant be admitted to take the oath, he or she shall thereafter be exempt from imprisonment on the execution or any future execution that may be issued on such judgment, and execution on such judgment shall issue only against the goods and chattels and real estate of the defendant.

History of Section. G.L. 1896, ch. 260, § 20; G.L. 1909, ch. 326, § 20; G.L. 1923, ch. 377, § 20; G.L. 1938, ch. 563, § 20; G.L. 1956, § 10-13-22 .

10-13-23. Certificate as to oath — Certificate of discharge.

The justice administering the oath as provided in § 10-13-7 , pursuant to the provisions of § 10-13-21 , shall give a certificate to that effect, under his or her hand and seal, to the defendant. In all cases the justice who commences the examination under the provisions of this chapter shall alone have the power to sign and seal the certificate of discharge.

History of Section. G.L. 1896, ch. 260, § 21; G.L. 1909, ch. 326, § 21; G.L. 1923, ch. 377, § 21; G.L. 1938, ch. 563, § 21; G.L. 1956, § 10-13-23 ; P.L. 1997, ch. 326, § 34.

10-13-24. Assignment for benefit of creditors upon administration of oath.

Whenever the oath as provided in this chapter shall be administered to any defendant, under the provisions of §§ 10-13-14 10-13-23 he or she shall then and there make an assignment of all his or her estate, real and personal, not exempted from attachment by law, to some responsible inhabitant of this state, his or her heirs and assigns, to be approved by the magistrate administering the oath, in trust for the benefit of all his or her creditors in proportion to their demands, and a copy of the assignment shall be filed by the assignee in the office of the clerk of the court issuing the execution.

History of Section. G.L. 1896, ch. 260, § 22; G.L. 1909, ch. 326, § 22; G.L. 1923, ch. 377, § 22; G.L. 1938, ch. 563, § 22; G.L. 1956, § 10-13-24 ; P.L. 1997, ch. 326, § 96.

NOTES TO DECISIONS

Equitable Interests.

An assignment of “all my estate, both real and personal, not exempt from attachment by law” conveys equitable as well as legal interests. Tillinghast v. Bradford, 5 R.I. 205 , 1858 R.I. LEXIS 14 (1858).

10-13-25. Party deemed creditor — Effect of executions subsequent to oath.

The person to whom the debt appears, by the process, to belong at the time complaint is made, shall be deemed the creditor within the meaning of the provisions of this chapter. Neither the commitment of the prisoner, nor his or her discharge, shall be a satisfaction of the debt for which he or she was committed. If committed on execution, the plaintiff may take out another execution, which shall not, however, run against the body of the defendant. If suit is brought on the judgment, execution in the suit shall not run against the body of the defendant, nor shall the defendant be held to bail on the writ in such case. If the defendant is committed on mesne process, when he or she receives a certificate as provided in § 10-13-23 , if that fact is shown by plea to the court before which the action is pending, then execution shall not issue against the body of the defendant, but in all such cases execution shall issue against the goods and chattels and real estate of the defendant.

History of Section. G.L. 1896, ch. 260, § 23; C.P.A. 1905, § 1234; G.L. 1909, ch. 326, § 23; G.L. 1923, ch. 377, § 23; G.L. 1938, ch. 563, § 23; G.L. 1956, § 10-13-25 ; P.L. 1997, ch. 326, § 96.

NOTES TO DECISIONS

Discharge of Debtor From Prison.

Discharge of debtor from prison because of failure of creditor to pay his board did not extinguish creditor’s judgment against the debtor, but only the property of the debtor was thereafter liable and not the body of the debtor. Hidden v. Saunders, 2 R.I. 391 , 1853 R.I. LEXIS 4 (1853).

Execution Against Property.

Judgment creditor could have alias execution to run against property of debtor during continuance of debtor’s commitment on former execution issued on the same judgment. Sullivan v. Reynolds, 39 R.I. 438 , 98 A. 58, 1916 R.I. LEXIS 46 (1916).

10-13-26. Adjournment of hearings.

Any judge of the district court, who shall be present at the time and place to which any citation in behalf of any poor prisoner, issued under the provisions of this chapter, shall be duly returned, may, in the absence of another magistrate, adjourn the hearing thereon to any other time or place, as he or she may think proper, with the same effect as if another judge were present.

History of Section. G.L. 1896, ch. 260, § 24; C.P.A. 1905, § 1233; G.L. 1909, ch. 326, § 24; G.L. 1923, ch. 377, § 24; G.L. 1938, ch. 563, § 24; G.L. 1956, § 10-13-26 ; P.L. 1969, ch. 239, § 23.

10-13-27. Petition for discharge by prisoner unable to pay tort judgment.

Whenever any person shall have been imprisoned for six (6) months upon a writ of arrest, mesne process, execution, or upon surrender or commitment by bail in any action on any penal statute, actions sounding in tort, including actions for possession of land or trespass to land in which title to the land is not in dispute, or other civil action in which such person is not now entitled to his or her discharge, upon being admitted to take the poor debtor’s oath, the person so imprisoned may petition the justice of the district court in the county in which he or she is imprisoned, setting forth that he or she is detained in prison, the term of his or her imprisonment, the cause of his or her committal, and the name and residence of the person at whose suit he or she was committed, and that he or she is unable to pay the judgment upon which he or she is committed, and to pay his or her prison charges: provided, however, that any person who shall have been imprisoned as provided in this chapter upon a writ issued out of a district court or upon execution wherein the debt or damages and costs shall not exceed one thousand dollars ($1,000) may petition as provided in this chapter after ninety (90) days of imprisonment.

History of Section. G.L. 1896, ch. 261, § 4; C.P.A. 1905, § 1158; G.L. 1909, ch. 327, § 4; G.L. 1923, ch. 378, § 1; P.L. 1929, ch. 1331, § 12; G.L. 1938, ch. 564, § 1; G.L. 1956, § 10-13-27 ; P.L. 1965, ch. 55, § 56.

NOTES TO DECISIONS

Slander.

Defendant in action on the case for slander was entitled to the benefit of this section after imprisonment for the prescribed period. Minikowsky v. Bliss, 36 R.I. 294 , 90 A. 209, 1914 R.I. LEXIS 24 (1914).

Small Judgments.

The word “costs” in the proviso means only the costs specified in the execution and does not include the prisoner’s board while he is confined in jail. In re Millard, 13 R.I. 178 , 1880 R.I. LEXIS 72 (1880).

The words “upon execution” in the proviso are not limited to executions from the justice (district) courts. In re Millard, 13 R.I. 178 , 1880 R.I. LEXIS 72 (1880).

10-13-28. Examination of tort debtor — Assignment of property — Administration of oath.

Upon the receipt of any petition of any poor tort debtor under the provisions of § 10-13-27 , the justice to whom the petition shall be addressed shall fix a time and place for the hearing of the petition, and shall issue a citation, directed to the committing creditor or to his or her attorney of record in the suit, or if the committing creditor be deceased, to the legal representative of the deceased creditor, which citation shall be served upon one of the persons to whom it is directed at least six (6) days before the return day thereof. Upon the return of the citation duly served, the justice shall cause the petitioner to be brought before him or her upon habeas corpus at the time and place named in the citation, and either then or at such other time as the justice shall appoint, shall proceed to examine the petitioner and to hear the evidence which may be properly adduced in favor of and against the granting of the prayer of the petition, and if it shall be made to appear that the petitioner has no property, rights, or credits with which to pay prison charges, or which is not exempt by law from attachment, and that the debtor has made an assignment to the warden in the manner prescribed in § 10-13-7 , if the justice shall be of the opinion that the petitioner can truly take the oath prescribed in § 10-13-8 , the justice may administer to the petitioner the oath, and the like certificate shall be issued thereof, and the certificate shall have the like effect in all respects with reference to the discharge of the petitioner from the correctional institution, and the issue of execution, or of alias or pluries execution, upon the judgment shall be in the form and with the like effect, as if the petitioner had been entitled to and admitted to take the poor debtor’s oath under the provisions of §§ 10-13-1 10-13-26 .

History of Section. G.L. 1896, ch. 261, § 5; C.P.A. 1905, § 1159; G.L. 1909, ch. 327, § 5; G.L. 1923, ch. 378, § 2; G.L. 1938, ch. 564, § 2; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 10-13-29 .

NOTES TO DECISIONS

Failure to Appear.

Failure of petitioner to appear at hearing on citation was not a withdrawal of citation within the meaning of § 10-13-13 where justice did not issue habeas corpus under this section. Ilczyszyn v. Choquet, 39 R.I. 496 , 99 A. 10, 1916 R.I. LEXIS 61 (1916).

Obtaining Petitioner’s Presence.

Upon return of citation, it was the duty of the justice to issue habeas corpus to bring petitioner before him at time and place named in citation. Ilczyszyn v. Choquet, 39 R.I. 496 , 99 A. 10, 1916 R.I. LEXIS 61 (1916).

10-13-29. Costs paid by debtor.

The cost of the service of citation and the writ of habeas corpus issued under the provisions of §§ 10-13-27 and 10-13-28 shall be paid by the petitioner for relief hereunder.

History of Section. G.L. 1896, ch. 261, § 6; G.L. 1909, ch. 327, § 6; G.L. 1923, ch. 378, § 3; G.L. 1938, ch. 564, § 3; G.L. 1956, § 10-13-29 .

Chapter 14 Quo Warranto

10-14-1. Equity petition in supreme court.

The title to any office, to determine which the writ of quo warranto lies at the common law, may be brought in question by petition to the supreme court.

History of Section. G.L. 1896, ch. 263, § 1; C.P.A. 1905, § 1160; G.L. 1909, ch. 328, § 1; G.L. 1923, ch. 379, § 1; G.L. 1938, ch. 585, § 1; G.L. 1956, § 10-14-1 .

Cross References.

Domestic fraternal benefit society, liquidation, receivership, § 27-25-30 .

Jurisdiction of superior court, § 8-2-16 .

Comparative Legislation.

Quo warranto proceedings:

Conn. Gen. Stat. § 52-491 et seq.

Mass. Ann. Laws ch. 249, § 6 et seq.

NOTES TO DECISIONS

Appointees.

The status of petitioner, who had been appointed by town council as Republican member to the board of canvassers for six-year term pursuant to the provisions of §§ 17-8-1 , 17-8-2 , from list submitted to town council by the chairman of the Republican town committee, was not subject to question throughout the term for which he was appointed. Sibielski v. Acciardo, 108 R.I. 545 , 277 A.2d 307, 1971 R.I. LEXIS 1303 (1971).

Because justices of the Supreme Court of Rhode Island were no longer elected, they were no longer subject to the prohibition in R.I. Const. art. III, § 6 against serving another government; therefore, a private citizen could not proceed with a petition in equity in the nature of quo warranto challenging the chief justice’s right to remain in office after agreeing to serve on a military review panel as part of the federal government’s war on terror. McKenna v. Williams, 874 A.2d 217, 2005 R.I. LEXIS 113 (R.I. 2005).

Challenge to Office Itself.

Petition would not lie under this section where the question was not as to title to the office, but rather as to whether office existed and as to the duties thereof. Hudson v. Johnson, 30 R.I. 194 , 74 A. 178, 1909 R.I. LEXIS 15 (1909).

Where a petition in equity to challenge a petitioner’s title to the office of mayor of the city of Providence without the intervention of the attorney general seeks to vindicate a purely public right on behalf of the citizens of Providence, and the petitioner makes no claim that he seeks to vindicate a private right on his own behalf by claiming title to the public office in dispute, the petition in equity is denied. State ex rel. Webb v. Cianci, 591 A.2d 1193, 1991 R.I. LEXIS 94 (R.I. 1991).

Jurisdiction.

While jurisdiction to hear any proceeding upon a writ of quo warranto or by way of an information in the nature of quo warranto is vested in the superior court by virtue of § 8-2-16 , this section vests the exclusive jurisdiction to entertain petitions in equity in the nature of quo warranto in the Supreme Court. Fargnoli v. Cianci, 121 R.I. 153 , 397 A.2d 68, 1979 R.I. LEXIS 1758 (1979).

Although the superior court has jurisdiction to hear any proceeding upon a writ of quo warranto or by way of an information in the nature of quo warranto by virtue of § 8-2-16 , the Supreme Court has exclusive jurisdiction under this section to entertain petitions in equity in the nature of quo warranto. Such a petition in equity rests on an entirely different basis from a petitioner’s common-law petition for leave to file an information in the nature of quo warranto. State ex rel. Webb v. Cianci, 591 A.2d 1193, 1991 R.I. LEXIS 94 (R.I. 1991).

In the law firm’s quo warranto action seeking to have the Chief Justice of the Rhode Island Supreme Court removed from the bench, the reviewing court had sole original jurisdiction under R.I. Gen. Laws § 10-14-1 ; it was, therefore, appropriate for the reviewing court to grant certiorari to determine whether the law firm had standing to bring the action. McKenna v. Williams, 874 A.2d 1292, 2005 R.I. LEXIS 82 (R.I. 2005).

Procedure.

That part of a complaint filed in the superior court on behalf of plaintiff officeholders was considered a petition in equity in the nature of quo warranto filed pursuant to this section in which plaintiffs challenged appointment of new officeholders as being null and void for many reasons including absence of a quorum. Fargnoli v. Cianci, 120 R.I. 999 , 390 A.2d 940, 1978 R.I. LEXIS 881 (1978).

Who Asserts Rights.

Petition could not be maintained under this section by private individuals who did not assert right in themselves to the office questioned. Black v. Cummings, 62 R.I. 361 , 5 A.2d 858, 1939 R.I. LEXIS 34 (1939).

The fact that relator could not prove title to office in question was not fatal to the petition where the action in effect was brought by the attorney-general in the public interest and court had power to determine title of the respondent. Nugent ex rel. Logee v. Bristow, 91 R.I. 312 , 163 A.2d 41, 1960 R.I. LEXIS 100 (1960).

Although the petition in equity in the nature of quo warranto pursuant to § 10-14-1 was authorized to serve the need of a private individual who sought to establish his or her own title to the public office in issue, there was no reason why the attorney general could not institute such a petition on behalf of the public in regard to a public employee serving on a canvassing board. Whitehouse v. Moran, 808 A.2d 626, 2002 R.I. LEXIS 186 (R.I. 2002).

Since a town charter unambiguously prohibited dual officeholding by elected officials, including a member of the school committee and the town council, petitioner, upon assuming the position of town councilman, in effect resigned his seat on the school committee. Therefore, his quo warranto action, seeking to regain the office of committee member, failed. Felkner v. Chariho Reg'l Sch. Comm., 968 A.2d 865, 2009 R.I. LEXIS 36 (R.I. 2009).

10-14-2. Issues determinable in proceedings in nature of quo warranto — Parties.

In any proceeding upon writ of quo warranto, or by information or by petition in the nature of quo warranto, the court may determine the title of the relator or petitioner as well as that of the respondent; and in any such proceeding, all or any persons claiming the same office by whatever title, or claiming different offices depending upon the same election or appointment, may be made parties, and their respective rights may be ascertained and determined; and the court may consolidate for the purposes of healing and adjudication all such proceedings if brought separately.

History of Section. G.L. 1896, ch. 263, § 2; G.L. 1909, ch. 328, § 2; G.L. 1923, ch. 379, § 2; G.L. 1938, ch. 585, § 2; G.L. 1956, § 10-14-2 .

Cross References.

Power of supreme court to issue writ, § 8-1-2 .

NOTES TO DECISIONS

Burden of Proof.

Where the respondent has produced a certificate of appointment to the office from the proper authority, the burden is then on the petitioner to establish by a fair preponderance of the evidence that the respondent is not legally entitled to the office and should be ousted and petitioner’s right to office recognized. McGroarty v. Ferretti, 56 R.I. 152 , 184 A. 508, 1936 R.I. LEXIS 92 (1936).

In proceedings in equity in nature of quo warranto by persons ousted, petitioners had burden of establishing that they were illegally removed. Jackvony v. Berard, 66 R.I. 290 , 18 A.2d 889, 1941 R.I. LEXIS 29 (1941).

Evidence.

Where the regularity of the meeting at which the election was made was in dispute, respondent could show by parol evidence or otherwise the manner and by whom the meeting was called. Gelinas v. Fugere, 55 R.I. 225 , 180 A. 346, 1935 R.I. LEXIS 25 (1935).

Parol evidence could be used to attack record of clerk of board of aldermen as to election of police commissioners. Toupin v. Marceau, 55 R.I. 265 , 180 A. 353, 1935 R.I. LEXIS 26 (1935).

On petition in the nature of quo warranto supreme court could review the evidence to determine whether statutory grounds had existed for the removal of petitioners from office. Jackvony v. Berard, 66 R.I. 290 , 18 A.2d 889, 1941 R.I. LEXIS 29 (1941).

Offices Subject to Provisions.

Attorney-general could bring information in nature of quo warranto to challenge claimant to office of major general of militia. State v. Brown, 5 R.I. 1 , 1857 R.I. LEXIS 1 (1857).

Petition could not be filed for the purpose of determining title to office of members of political party committee since title to a public office was not involved. Greenough v. Lucey, 28 R.I. 230 , 66 A. 300, 1907 R.I. LEXIS 23 (1907).

Parties.

A person holding over until his successor was appointed had a sufficient interest to allow him to bring proceedings in his own name to determine right and title to the office. McGroarty v. Ferretti, 56 R.I. 152 , 184 A. 508, 1936 R.I. LEXIS 92 (1936).

In proceeding under this chapter where only the public interest is involved the intervention of the attorney-general is necessary. Black v. Cummings, 62 R.I. 361 , 5 A.2d 858, 1939 R.I. LEXIS 34 (1939).

A petition in equity in the nature of quo warranto can be filed without the intervention of the attorney-general only if the petitioner alleges that he is entitled to the office and that the respondent is not entitled to it. Black v. Cummings, 62 R.I. 361 , 5 A.2d 858, 1939 R.I. LEXIS 34 (1939).

Any proceeding upon a writ of quo warranto or by way of information in the nature of quo warranto which seeks to enforce a public right cannot be brought unless it is instituted by the attorney general or the attorney general intervenes in the proceeding and the relief it affords is limited to the ouster of the incumbent from office while for a petition in equity in the nature of quo warranto there is no necessity for intervention by the attorney general since the proceeding may be instituted by one who claims title to an office and the successful petitioner may obtain a decree which not only ousts the respondent from office but also declares that petitioner is the rightful holder of the office in dispute. Fargnoli v. Cianci, 121 R.I. 153 , 397 A.2d 68, 1979 R.I. LEXIS 1758 (1979).

— Joinder of Parties.

An information of quo warranto could be presented against all members of town council on a ground common to them all. State v. Kearn, 17 R.I. 391 , 22 A. 322, 1891 R.I. LEXIS 38 (1891).

Respondents may be joined in one petition where the titles by which they hold their offices depend upon identical matters of law or fact. State v. Kearn, 17 R.I. 391 , 22 A. 322, 1891 R.I. LEXIS 38 (1891); Black v. Cummings, 62 R.I. 361 , 5 A.2d 858, 1939 R.I. LEXIS 34 (1939).

Pleadings.

In information in the nature of quo warranto it was necessary to aver only that the respondent was in possession of the office without lawful authority and it was for the respondent to aver the facts upon which his title to office depended. State v. Carroll, 17 R.I. 591 , 24 A. 106, 24 A. 835, 1892 R.I. LEXIS 47 (1892).

When a petitioner seeks permission to file a petition in equity under the statute without intervention of the attorney-general, the primary issue must be the right of the petitioner to the office, and the petitioner must allege claim to it and facts in support of such claim. Black v. Cummings, 62 R.I. 361 , 5 A.2d 858, 1939 R.I. LEXIS 34 (1939).

Questions Considered.

In proceeding to determine title to an office the judicial action of the board of canvassers in making up the voting lists does not bar a full inquiry into the qualifications of the voters participating. Horton v. Sullivan, 35 R.I. 242 , 86 A. 314, 1913 R.I. LEXIS 21 (1913).

Gratuitous conclusions of the clerk of board of aldermen in reference to election of police commissioners, not based upon proper showing in record of facts, were not conclusively binding on the supreme court. Toupin v. Marceau, 55 R.I. 265 , 180 A. 353, 1935 R.I. LEXIS 26 (1935).

Where questions of fact are involved in petitions in equity in the nature of quo warranto it is the duty of the supreme court to weigh the evidence. Jackvony v. Berard, 66 R.I. 290 , 18 A.2d 889, 1941 R.I. LEXIS 29 (1941).

Remedies.

Formerly quo warranto lay to remove an illegal incumbent of an office but not to put the legal officer in his place. State v. Lane, 16 R.I. 620 , 18 A. 1035, 1889 R.I. LEXIS 74 (1889).

Collateral References.

Corporation as necessary or proper party defendant in proceedings to determine validity of election or appointment of corporate director or officer. 21 A.L.R.2d 1048.

Power of district, county, or prosecuting attorney to bring quo warranto to try right or title to public office. 131 A.L.R. 1214, 153 A.L.R. 899.

Propriety of default judgment against defendant, without introduction of evidence, in quo warranto proceeding to oust public officer. 92 A.L.R.2d 1121.

Quo warranto as remedy for determination of rights of noncivil service public employee, with respect to discharge, under state veterans’ tenure statute. 58 A.L.R.2d 960.

Quo warranto as remedy for determining right or title to office in unincorporated private association. 82 A.L.R.2d 1169.

Quo warranto proceedings under Absentee Voters’ Laws. 97 A.L.R.2d 344.

Quo warranto to oust incumbent of public office, based on misconduct or other ground of forfeiture. 119 A.L.R. 725.

Right of private person not claiming office to maintain quo warranto proceedings to test title to or evidence of public office. 51 A.L.R.2d 1306.

Tax statute, quo warranto to try title or right to office connected with administration. 109 A.L.R. 330.

Teacher as an officer whose right may be tested by quo warranto. 30 A.L.R. 1423.

10-14-3. Enforcement of judgments — Order of new elections.

In all proceedings under this chapter, the court shall enforce its judgment by appropriate process; and whenever it shall find that no election was made, it may order a new election in all cases where new elections are required by law to be held upon failure to elect in the first instance.

History of Section. G.L. 1896, ch. 263, § 3; G.L. 1909, ch. 328, § 3; G.L. 1923, ch. 379, § 3; G.L. 1938, ch. 585, § 3; G.L. 1956, § 10-14-3 .

Cross References.

Duties of sheriffs, § 42-29-1 .

NOTES TO DECISIONS

Appointment of Master.

In proceedings involving election of officers in religious corporation, where it appeared that the election was held under such circumstances as to render it unfair and invalid, and where there had been violent disagreements as to the membership of the corporation, supreme court would order a new election under the supervision of a master. Caranica v. Belba, 131 A. 840, 1926 R.I. LEXIS 127 (R.I. 1926).

Tie Election.

Where the decision of the court as to certain invalid ballots resulted in a tie election for town council, a new election would be ordered under this section. Thorpe v. Fales, 33 R.I. 394 , 81 A. 721, 1911 R.I. LEXIS 130 (1911).

Chapter 15 Receivers of Joint Estates

10-15-1. Appointment to receive income from joint or common property.

Upon the application of any party interested, the superior court may and is hereby authorized to appoint receivers of the rents and profits of estates owned by joint tenants and tenants in common.

History of Section. G.L. 1896, ch. 267, § 1; C.P.A. 1905, § 1220; G.L. 1909, ch. 332, § 1; G.L. 1923, ch. 383, § 1; G.L. 1938, ch. 596, § 1; G.L. 1956, § 10-15-1 .

Cross References.

Limited partner’s interest, receivership as to, § 7-13-23 .

Partition of joint or common property, § 34-15-1 et seq.

Tenancy in common, § 34-3-1 et seq.

NOTES TO DECISIONS

Appeal.

Appointment of receiver under this chapter is at least a proceeding following the course of equity, so a final decree after hearing on the merits is appealable under § 9-24-1 . Kaiser v. Burger, 64 R.I. 83 , 10 A.2d 355, 1940 R.I. LEXIS 11 (1940).

Collateral References.

Conclusiveness of order of one judge appointing receiver on another judge in same case. 132 A.L.R. 85.

Dissolution of partnership or joint adventure, otherwise than by death of partner or at instance of creditor, appointment of receiver in proceedings arising out of. 23 A.L.R.2d 583.

Nonsuit, dismissal or discontinuance of action, effect upon previous order appointing receiver. 11 A.L.R.2d 1407.

Probability that plaintiff will be entitled to judgment as condition of appointment of receiver pendente lite. 109 A.L.R. 1212.

Suits between alleged co-tenants. 127 A.L.R. 1229.

10-15-2. Duties of receiver.

It shall be the duty of a receiver to take possession of and manage such estates, to lease the estates but not under seal, collect the rents due and as they become due, keep the premises in repair, and distribute the net income among the joint tenants or tenants in common.

History of Section. G.L. 1896, ch. 267, § 2; G.L. 1909, ch. 332, § 2; G.L. 1923, ch. 383, § 2; G.L. 1938, ch. 596, § 2; G.L. 1956, § 10-15-2 .

Cross References.

Embezzlement and fraudulent conversion by receiver as larceny, § 11-41-3 .

Limited liability on instrument signed as fiduciary, § 9-2-9 .

10-15-3. Removal and replacement of receiver.

A receiver may be for cause shown removed by the court and another appointed in his or her place, upon the petition of any party interested in the estate.

History of Section. G.L. 1896, ch. 267, § 4; G.L. 1909, ch. 332, § 4; G.L. 1923, ch. 383, § 4; G.L. 1938, ch. 596, § 4; G.L. 1956, § 10-15-3 .

Cross References.

Continuation of action by or against successor receiver, Civil Procedure Rule 25(a), (d).

10-15-4. Termination of receivership on notice by parties.

A receivership shall terminate upon notice in writing to the receiver by all the parties interested or their duly authorized agents or legal representatives.

History of Section. G.L. 1896, ch. 267, § 3; G.L. 1909, ch. 332, § 3; G.L. 1923, ch. 383, § 3; G.L. 1938, ch. 596, § 3; G.L. 1956, § 10-15-4 .

Chapter 16 Small Claims and Consumer Claims

10-16-1. Actions subject to chapter.

In all ex contractu civil actions and in any action to recover the amount of any tax for money only not in excess of five thousand dollars ($5,000) exclusive of interest and costs, and in all actions or suits to recover damages resulting from a retail sale of tangible personal property to a member of the general public or from services rendered to a member of the general public in which the plaintiff seeks to recover an amount of money only not in excess of five thousand dollars ($5,000) exclusive of interest and costs, and in all actions or suits based upon a negotiable instrument involving an amount of money only not in excess of five thousand dollars ($5,000) exclusive of interest and costs, the procedure shall, at the plaintiff’s election, shown by his or her waiver of appeal, be as provided by this chapter.

History of Section. P.L. 1930, ch. 1596, § 1; P.L. 1933, ch. 2022, § 1; G.L. 1938, ch. 592, § 1; G.L. 1956, § 10-16-1 ; P.L. 1959, ch. 68, § 1; P.L. 1962, ch. 19, § 1; P.L. 1969, ch. 130, § 1; P.L. 1969, ch. 239, § 12; P.L. 1970, ch. 214, § 1; P.L. 1975, ch. 232, § 1; P.L. 1976, ch. 192, § 2; P.L. 1982, ch. 332, § 1; P.L. 1987, ch. 77, § 2; P.L. 1991, ch. 244, § 1; P.L. 2004, ch. 212, § 1; P.L. 2004, ch. 300, § 1; P.L. 2021, ch. 143, § 1, effective July 3, 2021; P.L. 2021, ch. 144, § 1, effective July 3, 2021.

Compiler's Notes.

P.L. 2021, ch. 143, § 1, and P.L. 2021, ch. 144, § 1 enacted identical amendments to this section.

Comparative Legislation.

Small claims procedure:

Conn. Gen. Stat. § 51-15.

Mass. Ann. Laws ch. 218, § 21 et seq.

10-16-2. Jurisdiction of district court.

The district court shall have full jurisdiction of actions brought under the provisions of this chapter.

History of Section. P.L. 1930, ch. 1596, § 16; G.L. 1938, ch. 592, § 16; G.L. 1956, § 10-16-2 ; P.L. 1969, ch. 239, § 12.

10-16-3. Venue of actions — Rules of practice.

The venue of actions under this chapter shall be the same as in ordinary civil actions, except cases wherein the plaintiff is a corporation, in which event the action must be brought in the division of the district court wherein the defendant resides. If the defendant resides outside the state, then the venue shall be the same as in other civil actions. The laws relating to practice in ordinary civil actions in the district court, which are applicable to this procedure, and not inconsistent with the provisions of this chapter, shall apply to cases under this procedure.

History of Section. P.L. 1930, ch. 1596, § 11; G.L. 1938, ch. 592, § 11; G.L. 1956, § 10-16-3 ; P.L. 1969, ch. 239, § 12; P.L. 1976, ch. 273, § 1; P.L. 1987, ch. 77, § 2.

NOTES TO DECISIONS

Constitutionality.

As there is likely to be such a difference between the business done by a corporation and that done by a private person, there is no denial of equal protection of the law in imposing different venue limitations on corporations than those imposed upon individuals. Plantation Legal Defense Servs. v. O'Brien, 121 R.I. 595 , 401 A.2d 1277, 1979 R.I. LEXIS 1876 (1979).

10-16-3.1. Corporations — Representatives.

  1. Any corporation with total assets of less than one million dollars ($1,000,000) organized under the laws of this state or licensed to do business under the laws of this state, which is a corporation incorporated as a close corporation pursuant to § 7-1.2-1701 , or if the corporation is a close corporation or which is a corporation whose majority stockholders are family members related by blood or marriage, may designate a representative thereof to prosecute claims under this chapter; provided, however, that no representative may be designated to prosecute claims for more than one corporation. The designation authorized by an officer of the corporation shall be filed with the clerk of the district court in which any claim is filed.
  2. No representative under this section, if not licensed to practice law, shall be deemed to be practicing law without a license.

History of Section. P.L. 1977, ch. 265, § 1; P.L. 1978, ch. 109, § 1; P.L. 2005, ch. 36, § 10; P.L. 2005, ch. 72, § 10.

10-16-4. Filing fee — Waiver of appeal.

  1. The plaintiff shall pay into the court an entry fee of fifty-five dollars ($55.00), of which twenty dollars ($20.00) shall be placed in a “small claims mediation restricted-receipt account” together with an amount equal to the then-prevailing postal rate, for mailing notices in the case, which shall be deemed the beginning of the action. The “small claims mediation restricted-receipt account” shall be established under the control of the state court director of finance; the chief judge of the district court shall be authorized to pay for the services of qualified mediators and other related expenses from the “small claims mediation restricted-receipt account.” In addition to the entry fee, the court shall apply a technology surcharge in accordance with § 8-15-11 .
  2. The plaintiff shall also file with his or her claim a written waiver of right of appeal.

History of Section. P.L. 1930, ch. 1596, § 2; P.L. 1932, ch. 1904, § 1; G.L. 1938, ch. 592, § 2; P.L. 1952, ch. 3024, § 1; G.L. 1956, § 10-16-4 ; P.L. 1969, ch. 239, § 12; P.L. 1976, ch. 192, § 2; P.L. 1982, ch. 332, § 1; P.L. 1987, ch. 77, § 2; P.L. 1992, ch. 133, art. 6, § 1; P.L. 2004, ch. 212, § 1; P.L. 2004, ch. 300, § 2; P.L. 2009, ch. 5, art. 9, § 13; P.L. 2009, ch. 372, § 2; P.L. 2009, ch. 381, § 2; P.L. 2014, ch. 34, § 6; P.L. 2014, ch. 42, § 6.

Compiler’s Notes.

P.L. 2014, ch. 34, § 6, and P.L. 2014, ch. 42, § 6 enacted identical amendments to this section.

Rules of Court.

Complaint on book account, see Dist. Ct. Civil Rules Form 3A.

Pleading, Dist. Ct. Civil Rules 8-11.

10-16-5. Rules of procedure.

  1. The judges of the district court shall make such orders and rules as they deem necessary concerning the hearing and determination of small claims, including suitable forms of procedure in such cases.
  2. The chief judge of the district court shall be authorized to establish a system of mandatory mediation for all small claims actions other than actions relating to book accounts for a sum certain. The judges of the district court shall be authorized to make such rules as may be necessary for the establishment of said mandatory mediation system.

History of Section. P.L. 1987, ch. 77, § 3; P.L. 2004, ch. 212, § 1; P.L. 2004, ch. 300, § 2.

Repealed Sections.

The former section (P.L. 1930, ch. 1596, § 3; G.L. 1938, ch. 592, § 3; impl. am. P.L. 1956, ch. 3717, § 1; G.L. 1956, § 10-16-5 ; P.L. 1969, ch. 239, § 12), concerning notice of claim to defendant, was repealed by P.L. 1987, ch. 77, § 1, effective June 17, 1987.

10-16-6. Notations in docket — Refusal or return undelivered of notice to defendant.

The clerk shall note in the docket or in the papers of the case the mailing date of the notice and the address of the defendant. Notice shall be valid although refused by the defendant, and therefore not delivered. If the notice is returned undelivered without refusal by the defendant, or if in any other way it appears that notice has not reached the defendant, the clerk shall issue at the expense of the plaintiff such further or other notice to appear for hearing at such time as the court may order.

History of Section. P.L. 1930, ch. 1596, § 4; G.L. 1938, ch. 592, § 4; G.L. 1956, § 10-16-6 .

10-16-7. Judgment on default by defendant.

At the time set for answering, if the defendant does not appear to answer and defend the claim, he or she may then, or thereafter as the court may order, be defaulted, and judgment entered against him or her in favor of the plaintiff for his or her claim, or so much thereof as the court may find to be justly due and owing, or that should be awarded to the plaintiff.

History of Section. P.L. 1930, ch. 1596, § 5; G.L. 1938, ch. 592, § 5; G.L. 1956, § 10-16-7 ; P.L. 1987, ch. 77, § 2.

Rules of Court.

Default judgments, see Dist. Ct. R. Civ. P. Rule 55, Super. Ct. R. Civ. P. Rule 55.

Collateral References.

Waiver of right to default judgment. 64 A.L.R.5th 163.

10-16-8. Default by plaintiff — Prevention of abuse of procedure by claimants.

  1. If the plaintiff does not appear at the time set for the hearing, the court may dismiss the claim and action for want of prosecution, or enter judgment for the defendant for his or her costs, or make such other disposition of the case as may be proper.
  2. If the clerk shall find that the procedure provided by this chapter is sought to be utilized by a claimant for purposes of oppression or harassment, as where the claimant has previously resorted to such procedure on the same claim and has been unsuccessful after hearing thereon, the clerk may in his or her discretion compel the claimant to make application to the court for leave to prosecute the claim under this chapter. The court upon such application shall inquire into the circumstances and, if it shall find that the claim has already been adjudicated, or that the claim is sought to be brought on solely for purposes of oppression or harassment and not under color of right, it may make an order denying the claimant the availability of the procedure provided by this chapter.

History of Section. P.L. 1930, ch. 1596, § 6; G.L. 1938, ch. 592, § 6; G.L. 1956, § 10-16-8 ; P.L. 1970, ch. 214, § 1.

10-16-9. Filing of defense — Counterclaim.

Prior to or upon the date set for answering the defendant shall in writing file in court his or her answer or defense to the plaintiff’s claim and may claim any counterclaim he or she may have against the plaintiff’s claim, as he or she might plead the claim in an action begun by complaint and summons, and shall file a statement in writing of his or her counterclaim with the court, and the court shall determine which of the parties is entitled to decision against the other, and in what amount, and enter decision accordingly, but not exceeding the sum of two thousand five hundred dollars ($2,500). If the defendant’s counterclaim shall exceed the sum of two thousand five hundred dollars ($2,500), and in the opinion of the court there shall be due the defendant thereon an amount greater than two thousand five hundred dollars ($2,500), the court shall enter decision against the plaintiff as in case of nonsuit, and for the defendant for his or her costs only, and shall not further adjudicate upon the claim of the defendant, whose right to sue for the claim shall remain in the same manner as before the commencement of the action. The court may continue the hearing from time to time as may be necessary.

History of Section. P.L. 1930, ch. 1596, § 7; G.L. 1938, ch. 592, § 7; G.L. 1956, § 10-16-9 ; P.L. 1959, ch. 68, § 1; P.L. 1962, ch. 19, § 1; P.L. 1965, ch. 55, § 57; P.L. 1969, ch. 239, § 12; P.L. 1976, ch. 192, § 2; P.L. 1987, ch. 77, § 2; P.L. 2013, ch. 255, § 1; P.L. 2013, ch. 432, § 1.

Compiler’s Notes.

P.L. 2013, ch. 255, § 1, and P.L. 2013, ch. 432, § 1 enacted identical amendments to this section.

Rules of Court.

Defenses and objections, see Dist. Ct. Civil Rule 12.

10-16-10. Amendment of statements — Informality of proceedings — Evidence.

The court may at any time after such notice and upon such terms as it shall determine allow any claim or answer to be amended. No formal pleadings other than the statement of their respective claims in writing shall be necessary to define the issue between the parties, and the hearing of all such causes shall be informal with the sole object of dispensing speedy and final justice between the parties. The witnesses in the hearings shall be sworn and depositions may be used at the hearing, provided the depositions have been taken according to law.

History of Section. P.L. 1930, ch. 1596, § 9; G.L. 1938, ch. 592, § 9; G.L. 1956, § 10-16-10 .

Rules of Court.

Amendment of pleadings, see Dist. Ct. Civil Rule 15, Super. Ct. R. Civ. P. Rule 15.

10-16-11. Vacation of decisions or orders — Order of new hearing.

The court may at any time upon motion, and after such notice, by mail or otherwise as it may order for cause shown, vacate any decision, order or judgment entered by it under this procedure for want of actual notice to a party, for error, or for any other cause that the court may deem sufficient, and may stay or vacate execution, and may order a new hearing, upon such terms, costs, and conditions as the court shall deem just and proper.

History of Section. P.L. 1930, ch. 1596, § 10; G.L. 1938, ch. 592, § 10; G.L. 1956, § 10-16-11 .

Rules of Court.

Relief from judgment, see Dist. Ct. Civil Rule 60, Super. Ct. R. Civ. P. Rule 60.

10-16-12. Manner of payment of judgment — Stay of execution.

The court may order that the judgment shall be paid to the prevailing party at such time, or by such instalments, as it shall deem proper, and may stay the issue of execution and other supplementary process during compliance with the court’s order. The stay shall at all times be subject to being modified or vacated by the court.

History of Section. P.L. 1930, ch. 1596, § 12; G.L. 1938, ch. 592, § 12; G.L. 1956, § 10-16-12 .

Rules of Court.

Stay of proceedings to enforce judgment, see Dist. Ct. Civil Rule 62.

10-16-13. Disbursements allowed as costs.

The actual cash disbursements of the prevailing party for entry fee, mailing fee, and officers’ and witness fees shall be allowed as costs.

History of Section. P.L. 1930, ch. 1596, § 13; G.L. 1938, ch. 592, § 13; G.L. 1956, § 10-16-13 .

10-16-14. Appeals by defendant.

  1. The defendant, if aggrieved by the decision of the district court in a cause brought under the provisions of this chapter, shall have the same right of appeal, and under the same terms and conditions, as are provided under the practice in ordinary civil actions in district courts.
  2. Notwithstanding the foregoing, in cases in which the plaintiff is the purchaser of a consumer product seeking to recover damages against the seller and/or manufacturer of that product, if the defendant is defaulted for failure to answer and defend the claim, the judgment of the district court shall be final. In such event, the defendant shall be deemed to have forfeited all rights to appeal and shall not be entitled to a trial de novo in superior court.

History of Section. P.L. 1930, ch. 1596, § 8; G.L. 1938, ch. 592, § 8; G.L. 1956, § 10-16-14 ; P.L. 1984, ch. 235, § 1.

Rules of Court.

Appeal to superior court, see Dist. Ct. Civil Rule 73.

10-16-15. Remedies for enforcement of judgments.

Except as otherwise provided in this chapter, a party obtaining judgment under this chapter shall be entitled to the same remedies, processes, costs and benefits as are given or enure to other judgment creditors including the right to use trustee process in the same small claims action.

History of Section. P.L. 1930, ch. 1596, § 14; G.L. 1938, ch. 592, § 14; G.L. 1956, § 10-16-15 ; P.L. 1987, ch. 77, § 2.

10-16-16. Appropriations for carrying out chapter.

The general assembly shall annually appropriate such sums as it may deem necessary for the purpose of meeting the expenses of the district court in carrying out the provisions of this chapter; and the state controller is hereby authorized and directed to draw his or her orders upon the general treasurer for the payment of the necessary sums, or so much thereof as may be from time to time required, upon receipt by him or her of proper vouchers approved by the chief clerk of the district court.

History of Section. P.L. 1930, ch. 1596, § 15; P.L. 1932, ch. 1904, § 1; G.L. 1938, ch. 592, § 15; impl. am. P.L. 1939, ch. 660, § 65; G.L. 1956, § 10-16-16 ; P.L. 1969, ch. 239, § 12.

Chapter 17 Trustee Process

10-17-1. “Trustee” defined.

The word “trustee”, wherever occurring in this chapter, shall be deemed to include the words “attorney”, “agent”, “factor”, or “debtor”.

History of Section. C.P.A. 1905, § 596; G.L. 1909, ch. 301, § 28; G.L. 1923, ch. 351, § 28; G.L. 1938, ch. 550, § 19; G.L. 1956, § 10-17-1 .

Comparative Legislation.

Trustee process or garnishment:

Conn. Gen. Stat. § 52-329 et seq.

Mass. Ann. Laws ch. 246, § 1 et seq.

NOTES TO DECISIONS

Assignee for Benefit of Creditors.

The term “trustee” did not include an assignee for benefit of creditors. Cross v. Brown, 19 R.I. 220 , 33 A. 147, 1895 R.I. LEXIS 71 (1895), aff'd, 175 U.S. 396, 20 S. Ct. 131, 44 L. Ed. 211, 1899 U.S. LEXIS 1573 (1899).

Judgment Debt.

A judgment debt could be garnished in the court rendering it. Ellbey v. Cunningham, 54 R.I. 4 , 168 A. 815, 1933 R.I. LEXIS 2 (1933).

Personal Representative.

An administrator of the estate of a deceased person was not an “attorney, agent, factor, trustee or debtor” for the purpose of a foreign attachment for a debt due from the estate of the decedent. Conway v. Armington, 11 R.I. 116 , 1875 R.I. LEXIS 5 (1875).

10-17-2. Account by trustee as to attached property.

  1. Whenever any person, partnership, or corporation shall be served with a judicial writ, original or mesne process, with purpose of attaching the wages or personal estate of the defendant in the hands or possession of the person, partnership, or corporation, the person, partnership, or corporation shall render an account in writing, upon oath, to the court to which the writ is returnable. The original account shall state what wages or personal estate, if any, up to the amount of the demands set forth in the writ, the trustee had in his, her, or its hands or possession at the time the writ was served, except as provided in § 6A-4-303 ; or if none shall exist, the trustee shall state that fact in writing, to the court. The trustee is not required to account to the court for property in his, her, or its hands or possession in excess of the demand set forth in the writ.
  2. Whenever a supplemental accounting is required by § 10-17-4 , the trustee shall set forth the amount of wages garnished, if any, in the reporting period and shall also state the total amount of defendant’s wages held by the trustee to date. Upon the entire amount of demand as set forth in the writ being collected, or if the defendant permanently leaves the trustee’s employment, final account shall be filed with the court issuing the writ, setting forth that fact.

History of Section. C.P.A. 1905, § 576; G.L. 1909, ch. 301, § 10; P.L. 1910, ch. 586, § 1; P.L. 1917, ch. 1490, § 1; G.L. 1923, ch. 351, § 10; P.L. 1930, ch. 1608, § 1; G.L. 1938, ch. 550, § 1; G.L. 1956, § 10-17-2 ; P.L. 1960, ch. 147, § 3; P.L. 1984, ch. 357, § 3.

Cross References.

Consumers’ cooperative membership, exemption, § 7-8-25 .

Corporate officer accounting as to attached stock, § 10-5-20 .

Deputy sheriffs to execute process, § 42-29-6 .

Employees’ trusts, immunity from process, § 28-17-4 .

Federal lands, execution of process on, § 42-2-8 .

Fee for serving process, § 9-29-9 .

Negotiable bill of lading, process against goods subject to, § 6A-7-602 .

Police and firemen’s pensions, exemption, § 9-26-5 .

Public assistance not subject to process, § 40-9-17 .

Temporary disability insurance benefits, exemption, § 28-41-32 .

Warehouse, receipt, process against goods subject to, § 6A-7-602 .

Workers’ compensation claims, immunity, § 28-33-27 .

NOTES TO DECISIONS

Answer by Trustee.

A garnishee may file his affidavit or he may file an answer and defend the same in the name of the defendant. Coulters v. Sand Man, 53 R.I. 151 , 165 A. 220, 1933 R.I. LEXIS 49 (1933).

Mistake and Neglect.

Garnishee was not entitled to new trial based on accident or mistake where affidavit stated that garnishee held funds in amount greater than the actual amount, since officer making affidavit had a duty to know the amount and case was one of neglect, rather than accident or mistake. People's Loan & Trust Co. v. McMurray, 27 R.I. 516 , 63 A. 803, 1906 R.I. LEXIS 35 (1906).

The trial justice was warranted in vacating the charge against the garnishee, where the garnishee’s failure to file a sworn account under this section was due to his belief that he was not required to do so because of the fact that it was the defendant’s son rather than the defendant who worked for him, that he had so informed the officer who served the writ, and counsel for defendant, upon being so informed, had directed the officer to leave the writ notwithstanding. Ferestien v. De Marco, 102 R.I. 36 , 227 A.2d 788, 1967 R.I. LEXIS 641 (1967).

Person Rendering Account.

Only the person named as trustee could make the affidavit required by this section. Marshall v. Gray, 26 R.I. 517 , 59 A. 744, 1904 R.I. LEXIS 117 (1904).

Where corporate officer rendering the account did not properly show his capacity as an officer, corporation was entitled in action for failing to account to show that person rendering account was an officer. Premium Tea Co. v. Mallovelle, 32 R.I. 335 , 79 A. 825, 1911 R.I. LEXIS 32 (1911).

Persons Subject to Process.

City was subject to garnishee process. Wilson v. Lewis, 10 R.I. 285 , 1872 R.I. LEXIS 21 (1872).

A nonresident temporarily in the state was not subject to garnishment. Cronin v. Foster, 13 R.I. 196 , 1881 R.I. LEXIS 8 (1881).

Property Attached.

Bank deposit in name of defendant as “agent” was subject to garnishment for debt of defendant where bank knew nothing of any principal for whom defendant was agent and no principal claimed the deposit either before or after attachment. Proctor v. Greene, 14 R.I. 42 , 1882 R.I. LEXIS 14 (1882).

Shares of stock in a foreign corporation having no duly appointed attorney in this state could not be reached by garnishment of certificates which were in possession of a person in this state. Maertens v. Scott, 33 R.I. 356 , 80 A. 369, 1911 R.I. LEXIS 115 (1911).

Creditor could garnish amount due for buildings conditionally accepted, even though amount was unliquidated because setoffs might be made for defective material and workmanship and delay in completion, and while the garnishee could not be immediately charged, the security would be maintained until the amount was determined. McKendall v. Patullo, 52 R.I. 258 , 160 A. 202, 1932 R.I. LEXIS 38 (1932).

Setoff.

Service by garnishment was ineffective where the debt owed by the garnishee was more than offset by debts owed by the principal defendant to the garnishee. King v. Interstate Consolidated St. Ry., 45 R.I. 68 , 119 A. 849, 1923 R.I. LEXIS 21 (1923).

Collateral References.

Amendment of garnishment bond. 47 A.L.R.2d 971.

Funds deposited in court as subject to garnishment. 1 A.L.R.3d 936.

Garnishee’s pleading, answering interrogatories or the like, as affecting his right to assert court’s lack of jurisdiction. 41 A.L.R.2d 1093.

Garnishment of salary, wages, or commissions where defendant debtor is indebted to garnishee-employer. 93 A.L.R.2d 995.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one of the joint depositors. 11 A.L.R.3d 1465.

Retirement or pension proceeds or annuity payments under group insurance as subject to attachment or garnishment. 28 A.L.R.2d 1213.

Right of garnishee, other than bank holding deposit, to set off claims not due or certain when garnishment is served. 57 A.L.R.2d 700.

Rights of creditors of life insured as to options or other benefits available to him during his lifetime. 37 A.L.R.2d 268.

Taxable costs and disbursements as including expenses for garnishment bonds. 90 A.L.R.2d 448.

Who may serve writ, summons, or notice of garnishment. 75 A.L.R.2d 1437.

10-17-3. Oath to account — Certified copy.

The disclosure made by virtue of § 10-17-2 shall be sworn to before any person authorized to administer oaths and shall be filed with the clerk of the court to which the writ shall be returnable, and if the name and address of plaintiff’s attorney appears on the writ, a copy of the disclosure shall be mailed to the attorney at that address. The party filing the disclosure shall be entitled, on tendering a copy thereof and a fee of twenty-five cents ($.25) to the clerk, to have the copy certified by the clerk with whom the original is filed, and a certificate indorsed on such copy of the fact and date of filing.

History of Section. C.P.A. 1905, § 577; G.L. 1909, ch. 301, § 11; G.L. 1923, ch. 351, § 11; G.L. 1938, ch. 550, § 2; G.L. 1956, § 10-17-3 ; P.L. 1968, ch. 62, § 2.

10-17-4. Time of filing account.

  1. The account shall be filed with the court to which the writ is returnable within twenty (20) days after the service.
  2. In the case of wage garnishments, supplementary accounts shall be filed monthly thereafter until one of three (3) events occurs:
    1. The entire amount of plaintiff’s demand and costs of suit has been collected by the garnishee and reported to the court.
    2. The defendant is no longer employed by the garnishee.
    3. Plaintiff has released the garnishee from any obligation to file further accounts.

History of Section. C.P.A. 1905, § 576; G.L. 1909, ch. 301, § 10; P.L. 1910, ch. 586, § 1; P.L. 1917, ch. 1490, § 1; G.L. 1923, ch. 351, § 10; P.L. 1930, ch. 1608, § 1; G.L. 1938, ch. 550, § 1; G.L. 1956, § 10-17-4 ; P.L. 1965, ch. 55, § 58; P.L. 1966, ch. 1, § 14; P.L. 1984, ch. 357, § 3.

NOTES TO DECISIONS

Time for Filing Mandatory.

Requirement as to time of filing affidavit is mandatory and the court has no authority to extend the time provided by the statute. Marshall v. Gray, 26 R.I. 517 , 59 A. 744, 1904 R.I. LEXIS 117 (1904).

10-17-5. Surrender of property to officer.

When the personal estate of a defendant other than money or credits shall be attached in the hands of a person as trustee, if that person shall surrender the personal estate to the officer making the attachment, the officer shall take possession of the personal estate and make due return thereof upon the writ of attachment.

History of Section. C.P.A. 1905, § 576; G.L. 1909, ch. 301, § 10; P.L. 1910, ch. 586, § 1; P.L. 1917, ch. 1490, § 1; G.L. 1923, ch. 351, § 10; P.L. 1930, ch. 1608, § 1; G.L. 1938, ch. 550, § 1; G.L. 1956, § 10-17-5 .

10-17-6. Summons of garnishee as witness.

  1. In any action where money or other property shall have been trusteed in the hands of a person, firm, or corporation, the person signing the garnishee’s answer may be summoned by either party at any time before final judgment and subjected to examination and cross-examination upon all matters relating to or connected with the facts set forth in the answer, and evidence may be introduced to contradict the testimony of that person.
  2. A person summoned as provided in subsection (a) shall be entitled to an attendance fee of three dollars ($3.00) and lawful mileage, and unless summoned in the manner set forth in subsection (a), the answer sworn to by a trustee shall be deemed true in deciding how far the trustee is chargeable.

History of Section. C.P.A. 1905, § 578; P.L. 1907, ch. 1432, § 1; G.L. 1909, ch. 301, § 12; G.L. 1923, ch. 351, § 12; G.L. 1938, ch. 550, § 3; G.L. 1956, § 10-17-6 .

NOTES TO DECISIONS

Continuance to Determine Liability.

The garnishee was required to be charged before final judgment but the cause could be continued after decision and before final judgment in order to determine garnishee’s liability. Stephanian v. District Court of Sixth Judicial Dist., 29 R.I. 210 , 69 A. 924, 1908 R.I. LEXIS 47 (1908); George E. Merewether, Inc. v. Equi, 53 R.I. 148 , 165 A. 219, 1933 R.I. LEXIS 48 (1933).

Exempt Property.

Evidence that the fund sought to be attached was not attachable by reason of its being exempt from attachment did not tend to contradict garnishee’s affidavit and such evidence was admissible in a motion to discharge the garnishee to the extent of the exemption. McKenna v. Lucas, 21 R.I. 509 , 45 A. 101, 1900 R.I. LEXIS 3 (1900).

Failure to Answer Interrogatories.

Failure of a garnishee to comply with a court order to answer interrogatories did not make him liable to satisfy the plaintiff’s judgment but merely made him subject to the general power of the court to punish for contempt. Moses Falk & Co. v. Henry S. Flint & Co., 12 R.I. 14 , 1878 R.I. LEXIS 1 (1878); Hamill v. Bosworth & Champlin, 12 R.I. 124 , 1878 R.I. LEXIS 37 (1878).

Testimony of Defendant.

Oral testimony of the principal defendant could not be received on the question of the garnishee’s liability. George J. Raymond & Co. v. Narragansett Tinware Co., 14 R.I. 310 , 1883 R.I. LEXIS 70 (1883).

10-17-7. Amount with which trustee charged — Action against trustee.

If the accounts filed by any trustee in accordance with § 10-17-2 shall disclose that the trustee is holding any wages or personal estate of the defendant, then the trustee shall be charged to the amount disclosed, if less than the judgment or decree, otherwise to the amount of the judgment or decree. At the discretion of the court, an order may be entered allowing a partial charge of those funds. However, no such order shall be entered in the same case more than once in a three (3) month period of time. The plaintiff, after having recovered judgment or decree against the defendant, may bring his or her action against the trustee to recover the amount for which he or she is charged, with interest and costs.

History of Section. C.P.A. 1905, § 579; G.L. 1909, ch. 301, § 13; G.L. 1923, ch. 351, § 13; G.L. 1938, ch. 550, § 4; G.L. 1956, § 10-17-7 ; P.L. 1965, ch. 55, § 58; P.L. 1984, ch. 357, § 3.

Cross References.

Assignment for benefit of creditors, effect, § 10-4-6 .

NOTES TO DECISIONS

Decisions.

In garnishment proceedings there are two necessary decisions: (1) the right of plaintiff to recover and the amount of such recovery; and (2) the amount if any for which garnishee is to be charged. Coulters v. Sand Man, 53 R.I. 151 , 165 A. 220, 1933 R.I. LEXIS 49 (1933).

Federal Exemptions.

A debtor retains sufficient interest in attached property after garnishment but prior to the entry of a charging order to claim an exemption under the federal bankruptcy law. In re Nunally, 103 B.R. 376, 1989 Bankr. LEXIS 1567 (Bankr. D.R.I. 1989).

Intervening Claimant.

Mere notice of assignment of fund to a third person before trustee was charged is not sufficient to discharge him from liability except in cases where the assignment is admitted. Hanaford v. Hawkins, 18 R.I. 432 , 28 A. 605, 1893 R.I. LEXIS 77 (1893).

Upon proof by a third person of title to the fund, the court has power only to discharge the garnishee and not to decree payment of the fund to the third party. Garst v. Canfield, 43 R.I. 554 , 113 A. 865, 1921 R.I. LEXIS 25 (1921).

Judgment Without Personal Service.

In a proceeding to garnish bank account of nonresident the district court could render a judgment without personal service to the amount of the res in the hands of the garnishee. Ktorides v. Kazamias, 75 R.I. 465 , 67 A.2d 404, 1949 R.I. LEXIS 66 (1949).

Time of Determining Liability.

The charging of the garnishee must be before final judgment but cause could be continued after decision and before final judgment in order to determine the liability of the garnishee. Stephanian v. District Court of Sixth Judicial Dist., 29 R.I. 210 , 69 A. 924, 1908 R.I. LEXIS 47 (1908); George E. Merewether, Inc. v. Equi, 53 R.I. 148 , 165 A. 219, 1933 R.I. LEXIS 48 (1933).

Liability of the garnishee is determined as of time of service of the writ and a subsequent event changing the liability of the garnishee to the principal defendant will not be considered. King v. Interstate Consolidated St. Ry., 45 R.I. 68 , 119 A. 849, 1923 R.I. LEXIS 21 (1923).

10-17-8. Suits against separate trustees.

Whenever it shall appear that several persons, partnerships, or corporations have property of the defendant as trustees, the plaintiff may sue each separately and recover the amount in his or her hands, until the plaintiff shall receive full payment of his or her judgment or decree against the original defendant, with interest and costs.

History of Section. C.P.A. 1905, § 580; G.L. 1909, ch. 301, § 14; G.L. 1923, ch. 351, § 14; G.L. 1938, ch. 550, § 5; G.L. 1956, § 10-17-8 .

10-17-9. Satisfaction by trustee after judgment against defendant.

Any trustee, after final judgment or decree against the defendant, may satisfy the judgment or decree, or any part thereof, to the amount of the estate attached in his or her hands, before any suit shall be brought against him or her therefor; and such payment shall avail for his or her discharge, as against both plaintiff and defendant, for the amount thereof.

History of Section. C.P.A. 1905, § 581; G.L. 1909, ch. 301, § 15; G.L. 1923, ch. 351, § 15; G.L. 1938, ch. 550, § 6; G.L. 1956, § 10-17-9 .

NOTES TO DECISIONS

Assignment for Creditors.

Assignment for benefit of creditors which was made before garnishee was charged, but not recorded until after such charging, was not effective to dissolve the garnishment. Alves v. Barber, 17 R.I. 712 , 24 A. 528, 1892 R.I. LEXIS 64 (1892).

Void Attachment.

This section had no application where the original attachment was void by reason of a defective affidavit. C. C. Greene & Bro. v. Tripp, 11 R.I. 424 , 1877 R.I. LEXIS 14 (1877).

Collateral References.

Effect, as between garnishee and principal defendant, of payment or satisfaction of judgment against garnishee. 166 A.L.R. 278.

Judgment, payment of, by garnishee without notice of its assignment. 32 A.L.R. 1024.

Void order in garnishment proceedings, payment under, as protection to garnishee. 49 A.L.R. 1411.

10-17-10. Delivery of specific articles on execution.

If it shall appear by the disclosure that the personal estate in the hands of the trustee belonging to the defendant did not consist of money, but of one or more specific articles, the trustee may, after final judgment or decree against the defendant, surrender or deliver to the officer charged with the execution issued on the judgment or decree, the specific articles, in order that they may be taken on execution.

History of Section. C.P.A. 1905, § 582; G.L. 1909, ch. 301, § 16; G.L. 1923, ch. 351, § 16; G.L. 1938, ch. 550, § 7; P.L. 1948, ch. 2025, § 1; G.L. 1956, § 10-17-10 .

10-17-11. Delivery of money to court before judgment.

If it shall appear by the disclosure that the personal estate in the hands of the trustee belonging to the defendant consisted of money, the trustee, at any time before final judgment, may deliver the money to the clerk of the court.

History of Section. G.L. 1938, ch. 550, § 7; P.L. 1948, ch. 2025, § 1; G.L. 1956, § 10-17-11 .

10-17-12. Discharge of trustee by surrender or delivery.

The surrender or delivery shall be a good discharge to the trustee for the articles or money, as to both plaintiff and defendant in the action.

History of Section. C.P.A. 1905, § 583; G.L. 1909, ch. 301, § 17; G.L. 1923, ch. 351, § 17; G.L. 1938, ch. 550, § 8; P.L. 1948, ch. 2025, § 1; G.L. 1956, § 10-17-12 .

Cross References.

Wages held by employer as garnishee, § 28-14-11 .

10-17-13. Determination as to whether trustee is chargeable.

Whenever any person shall be served with a copy of a writ by which he or she shall be sought to be charged as trustee of the defendant named in the writ, and the person shall appear and answer to the action or suit so commenced, as to whether he or she is or is not a trustee of the defendant, the court in which the action or suit is brought or may be pending shall determine whether the person so served, is properly chargeable as the trustee of the defendant; and if chargeable, to what extent.

History of Section. C.P.A. 1905, § 584; G.L. 1909, ch. 301, § 18; G.L. 1923, ch. 351, § 18; G.L. 1938, ch. 550, § 9; G.L. 1956, § 10-17-13 .

NOTES TO DECISIONS

Assignments.

Where garnishee appeared and was charged before assignment for benefit of creditors was recorded, the garnishment was not vacated by the assignment even though it was executed before charging of the garnishee. Alves v. Barber, 17 R.I. 712 , 24 A. 528, 1892 R.I. LEXIS 64 (1892).

Effect of Charging Order.

Charging of the garnishee after appearance and answer was in effect a judgment which, unless appealed from, was conclusive not only on the liability of the garnishee but also of the rights of the parties to the fund. Alves v. Barber, 17 R.I. 712 , 24 A. 528, 1892 R.I. LEXIS 64 (1892).

Intervening Claimants.

Where third party asserted claim to fund, the court had power only to discharge the garnishee, not to enter judgment for third party claimant. Garst v. Canfield, 43 R.I. 554 , 113 A. 865, 1921 R.I. LEXIS 25 (1921).

Oral Testimony.

This section did not change the mode of determining liability so as to permit oral testimony after garnishee has filed an affidavit. George J. Raymond & Co. v. Narragansett Tinware Co., 14 R.I. 310 , 1883 R.I. LEXIS 70 (1883).

Prior Attachments.

Where there are prior attachments of the same property, the court cannot enter a charging order against the trustee until the disposition of the prior suits. Cross v. Brown, 19 R.I. 220 , 33 A. 147, 1895 R.I. LEXIS 71 (1895), aff'd, 175 U.S. 396, 20 S. Ct. 131, 44 L. Ed. 211, 1899 U.S. LEXIS 1573 (1899).

Safety-Deposit Boxes.

Property of the debtor in the possession of the garnishee contained in a locked safety-deposit box can be attached, even though garnishee does not know the contents, since by the provisions of this section the court can secure information as to the contents. Tillinghast v. Johnson, 34 R.I. 136 , 82 A. 788, 1912 R.I. LEXIS 34 (1912).

Property deposited by debtor in a safety-deposit box is subject to attachment, since the garnishee has the exclusive actual physical custody and control of the box against all persons other than the debtor and its control is subject only to the right of the debtor to open the box in accordance with the regulations of the garnishee. Tillinghast v. Johnson, 34 R.I. 136 , 82 A. 788, 1912 R.I. LEXIS 34 (1912).

Collateral References.

Garnishee’s pleading, answering interrogatories or the like, as affecting right to assert court’s lack of jurisdiction. 41 A.L.R.2d 1093.

Issue in garnishment as triable to court or to jury. 19 A.L.R.3d 1393.

10-17-14. Liability of trustee for false answers.

Any person summoned as trustee of a defendant, making a false answer or affidavit in any case, shall be liable to the plaintiff in a civil action for any damages which may result to him or her from the false answer or affidavit.

History of Section. C.P.A. 1905, § 585; G.L. 1909, ch. 301, § 19; G.L. 1923, ch. 351, § 19; G.L. 1938, ch. 550, § 10; G.L. 1956, § 10-17-14 ; P.L. 1965, ch. 55, § 58.

10-17-15. Liability on failure to render account — Action against trustee.

If any person, co-partnership or corporation, served as trustee with a copy of a writ, shall refuse or neglect to render, on oath, the account required by § 10-17-2 , of what personal estate of the defendant the trustee had in his or her hand at the time of the service of the copy, the trustee shall be charged to the amount of the judgment or decree, if any, rendered against the defendant in the suit; or, if no judgment is so rendered because of want of service upon the defendant, then, the trustee shall be charged to the amount of the just claim or demand which the plaintiff may show against the defendant to the satisfaction of the court. The amount for which the trustee is charged may be recovered by a civil action against him or her, except as otherwise provided in § 9-25-24 .

History of Section. C.P.A. 1905, § 586; G.L. 1909, ch. 301, § 20; P.L. 1917, ch. 1490, § 2; G.L. 1923, ch. 351, § 20; G.L. 1938, ch. 550, § 11; G.L. 1956, § 10-17-15 ; P.L. 1965, ch. 55, § 58.

Cross References.

Trustee’s affidavit as to want of notice, accident, or mistake, § 9-25-24 .

NOTES TO DECISIONS

Constitutionality.

This section did not violate R.I. Const., Art. 1, § 10 , or the due process clause of U.S. Const., Amend. 14. Vaughan v. Furlong, 12 R.I. 127 , 1878 R.I. LEXIS 39 (1878).

Accident, Mistake or Neglect.

Where garnishee, after receiving advice from attorney to make affidavit, neglected to do so, it was not entitled to equitable relief against suit under this section. Rhode Island Exch. Bank v. Hawkins, 6 R.I. 198 , 1859 R.I. LEXIS 27 (1859).

Relief may not be obtained under § 9-25-24 from liability under this section after return day of the execution against the principal defendant. Rondina v. Vosselman, 55 R.I. 239 , 180 A. 337, 1935 R.I. LEXIS 21 (1935).

Effect of Charging Order.

An order charging garnishee on failure to file an affidavit is not conclusive on the garnishee as a judgment would be. Eddy v. Providence Mach. Co., 15 R.I. 7 , 22 A. 1116, 1885 R.I. LEXIS 41 (1885); Premium Tea Co. v. Mallovelle, 32 R.I. 335 , 79 A. 825, 1911 R.I. LEXIS 32 (1911).

A mere charging of a garnishee by reason of its failure to file a garnishee’s affidavit does not render it liable to pay upon a judgment but only makes it liable to an action of the case wherein all its proper defenses are available to it. Premium Tea Co. v. Mallovelle, 32 R.I. 335 , 79 A. 825, 1911 R.I. LEXIS 32 (1911); Rondina v. Vosselman, 55 R.I. 239 , 180 A. 337, 1935 R.I. LEXIS 21 (1935); Curley v. Arcand Spring Co., 59 R.I. 140 , 194 A. 598, 1937 R.I. LEXIS 139 (1937).

Failure to Answer Interrogatories.

Refusal or neglect of garnishee to answer written interrogatories propounded to him after rendering account subjected him to penalty for contempt of court but did not make him liable to plaintiff for failure to account. Moses Falk & Co. v. Henry S. Flint & Co., 12 R.I. 14 , 1878 R.I. LEXIS 1 (1878); Hamill v. Bosworth & Champlin, 12 R.I. 124 , 1878 R.I. LEXIS 37 (1878).

Filing Affidavit.

Where affidavit was duly and properly made and filed with the clerk and the case to which it applied was accurately designated, notation at the top of the affidavit which showed a later date than the return day did not change the fact that the affidavit was duly filed, and garnishee was not liable for failure to account. Eddy v. Providence Mach. Co., 15 R.I. 7 , 22 A. 1116, 1885 R.I. LEXIS 41 (1885).

Action would not lie against garnishee until after the return date of the execution against the principal. Grant v. New York Life Ins. Co., 24 R.I. 11 , 51 A. 1046, 1902 R.I. LEXIS 8 (1902).

Nonpayment of Principal Judgment.

In action under this section plaintiff must show that the judgment against the principal debtor has not been paid. Curley v. Arcand Spring Co., 59 R.I. 140 , 194 A. 598, 1937 R.I. LEXIS 139 (1937).

Tender of Fees.

Garnishee was not liable for failure to render account where he was not paid or tendered the proper fees at the time of the service of the writ. Baxter v. H. W. Tyas Co., 50 R.I. 452 , 148 A. 600, 1930 R.I. LEXIS 13 (1930).

Void Attachment.

Action for failure to account would be dismissed where service of the original writ of attachment was not properly made. Leonhard v. John Hope & Sons Engraving & Mfg. Co., 21 R.I. 449 , 44 A. 305, 1899 R.I. LEXIS 89 (1899).

Bankruptcy of the principal defendant within four months of garnishment dissolved the garnishment and garnishee was not liable under this section for failure to file an affidavit. Mack v. Reliance Ins. Co., 52 R.I. 402 , 161 A. 134, 1932 R.I. LEXIS 76 (1932).

10-17-16. Joint action against trustees failing to account.

If several trustees shall neglect or refuse to render an account upon oath in the same case, then the plaintiff shall bring his or her action against all the trustees jointly, and in no other manner.

History of Section. C.P.A. 1905, § 587; G.L. 1909, ch. 301, § 21; G.L. 1923, ch. 351, § 21; G.L. 1938, ch. 550, § 12; G.L. 1956, § 10-17-16 .

10-17-17. Defense in name of defendant.

Every person, who shall be served with a copy of a writ against any defendant, may file an answer to the action or suit and defend the suit in behalf and in the name of the defendant.

History of Section. C.P.A. 1905, § 588; G.L. 1909, ch. 301, § 22; G.L. 1923, ch. 351, § 22; G.L. 1938, ch. 550, § 13; G.L. 1956, § 10-17-17 .

NOTES TO DECISIONS

Affidavit or Answer.

A garnishee may file his affidavit or he may file an answer and defend the same in the name of the defendant. Coulters v. Sand Man, 53 R.I. 151 , 165 A. 220, 1933 R.I. LEXIS 49 (1933).

10-17-18. Dismissal of person served who holds no property.

If it shall appear by the disclosure that the person who or partnership or corporation which had been served as trustee with a copy of such writ, had not any of the personal estate of the defendant in his, her, or its hands, then the action or suit shall be dismissed, and the trustee who shall appear to defend the action shall recover the costs, unless the court has acquired personal jurisdiction over the defendant.

History of Section. C.P.A. 1905, § 589; G.L. 1909, ch. 301, § 23; G.L. 1923, ch. 351, § 23; G.L. 1938, ch. 550, § 14; G.L. 1956, § 10-17-18 ; P.L. 1966, ch. 1, § 15.

10-17-19. Intervention by other claimant of estate.

Whenever the personal estate of any defendant is attached on trustee process, any person claiming the personal estate, under an assignment or otherwise, may on his or her own motion become a party to the action or suit so far as respects the title to the personal estate.

History of Section. C.P.A. 1905, § 590; G.L. 1909, ch. 301, § 24; G.L. 1923, ch. 351, § 24; G.L. 1938, ch. 550, § 15; G.L. 1956, § 10-17-19 .

NOTES TO DECISIONS

Effect of Judgment.

Where claimants became parties but made no exceptions to charge on garnishee, they cannot later file a bill in equity to restrain plaintiff from enforcing his judgment against garnishee. Barr v. Carpenter, 16 R.I. 724 , 19 A. 392, 1890 R.I. LEXIS 14 (1890).

Final judgment in a garnishment action is conclusive as to the rights of the parties to the personalty involved and a garnishee cannot, after judgment, maintain a bill of interpleader against the parties to such an action. Providence Inst. for Sav. v. Barr, 17 R.I. 131 , 20 A. 245, 1890 R.I. LEXIS 58 (1890).

This section does not require a claimant to become a party to the action or make the judgment binding on such claimant when he has not become a party. Richard v. Industrial Trust Co., 85 R.I. 292 , 130 A.2d 549, 1957 R.I. LEXIS 23 (1957).

Exceptions.

Third party claimant who did not become a party to the action could not after decision become a party so as to except to decision. Coulters v. Sand Man, 53 R.I. 151 , 165 A. 220, 1933 R.I. LEXIS 49 (1933).

Intervention.

Assignee of contract for construction of house could intervene and he was not estopped by the fact that he had previously filed a petition in name of assignor for a mechanic’s lien. Abbott v. Davidson, 18 R.I. 91 , 25 A. 839, 1892 R.I. LEXIS 16 (1892).

Where garnishee’s affidavit alleges notice of assignment of the fund to a third person, third person should be brought in, so that his interest may be determined, before garnishee is discharged. Hanaford v. Hawkins, 18 R.I. 432 , 28 A. 605, 1893 R.I. LEXIS 77 (1893).

10-17-20. Questions of fact on additional allegations.

Any question of fact arising upon additional allegations may be tried and determined in the manner that the court shall direct.

History of Section. C.P.A. 1905, § 592; G.L. 1909, ch. 301, § 25; G.L. 1923, ch. 351, § 25; G.L. 1938, ch. 550, § 16; G.L. 1956, § 10-17-20 .

10-17-21. Apportionment of costs.

In all cases under this chapter, the costs may be apportioned as the court may determine.

History of Section. C.P.A. 1905, § 593; G.L. 1909, ch. 301, § 26; G.L. 1923, ch. 351, § 26; G.L. 1938, ch. 550, § 17; G.L. 1956, § 10-17-21 .

10-17-22. Costs and charges incurred by trustee.

Every person, partnership, or corporation served with a copy of a writ for attaching the estate of another in his, her, or its hands or possession shall be paid all lawful costs and charges which he, she, or it shall incur in consequence of being served with the writ of attachment by the person who brings the action or suit; and so much of such charge as shall be judged reasonable by the court before whom the cause shall be pending shall be allowed in the bill of costs.

History of Section. C.P.A. 1905, § 595; G.L. 1909, ch. 301, § 27; G.L. 1923, ch. 351, § 27; G.L. 1938, ch. 550, § 18; G.L. 1956, § 10-17-22 .

NOTES TO DECISIONS

Inspection of Assets.

This section authorizes reimbursement of garnishee for any expense which he may be put in opening a locked safety-deposit box and examining the contents thereof. Tillinghast v. Johnson, 34 R.I. 136 , 82 A. 788, 1912 R.I. LEXIS 34 (1912).

Chapter 18 Wage Earner Receivership

10-18-1. Short title.

This chapter shall be known and may be cited as the “Wage Earner Receivership Statute.”

History of Section. P.L. 1972, ch. 186, § 1.

10-18-2. Definitions.

  1. A “prior creditor” is any creditor who had extended credit prior to the filing of the petition with the court.
  2. A “subsequent creditor” is any creditor who extends credit subsequent to the filing of the petition with the court.

History of Section. P.L. 1972, ch. 186, § 1.

10-18-3. Filing of petition.

  1. Any individual debtor whose income from all sources is not greater than the maximum wage earner income, as defined in subsection (b), and who is unable to pay his or her current debts as they mature but is able to make regular future payments on account sufficient to amortize the debts over a period of not more than five (5) years, may file a petition for receivership under this section with the clerk of the superior court in the county of his or her residence.
  2. The maximum wage earner income as used in subsection (a) is hereby defined to mean the greater of the following:
    1. Twelve thousand dollars ($12,000) per annum, or
    2. An amount which, considering the fluctuations in the general price level, is equivalent to twelve thousand dollars ($12,000) per annum in calendar year 1968.
  3. Changes in the price level shall be computed by the state controller using the consumer price index of the bureau of labor statistics of the United States department of labor. The foregoing computation shall be made annually, or more frequently at the discretion of the state controller.
  4. The petition shall be under oath and shall set forth the following:
    1. That the debtor is unable to meet his or her current debts as they mature;
    2. The names and addresses of his or her employer or employers, the income received from each, the periods for which received and when payable;
    3. Whether the petitioner is married, the name, age, and relationship of each person depending upon him or her for support and the approximate amount required for the petitioner’s and his or her dependents’ support;
    4. A list of all his or her creditors, with the names and addresses of and the amount owing to each, the nature of the claim, whether the indebtedness is secured or unsecured, the nature of the security, if any, and whether any listed claim is disputed, together with the amount claimed by the creditor and the amount claimed by the debtor;
    5. A description of all actions, suits or proceedings which are, to the best of his or her knowledge, in effect against him or her.
  5. Upon filing the petition, the debtor shall pay to the clerk of the court the sum of five dollars ($5.00) as a filing fee.

History of Section. P.L. 1972, ch. 186, § 1.

NOTES TO DECISIONS

Wage Earner Petition.

Rhode Island law provides for a state version of a federal chapter 13 wage earner petition. In re Gomes, 19 B.R. 9, 1982 Bankr. LEXIS 4415 (Bankr. D.R.I. 1982).

10-18-4. Appointment of receiver and assignment.

  1. After the debtor has filed a petition for a wage earner receivership plan, the court shall select a receiver who shall be an attorney authorized to practice in Rhode Island.
  2. The debtor shall deliver to the receiver a written assignment of all of his or her future wages, salaries, and commissions.
  3. The receiver shall give bond to be approved by the court.

History of Section. P.L. 1972, ch. 186, § 1.

NOTES TO DECISIONS

Federal Custodian.

The definition of custodian under federal bankruptcy law includes those functions which are substantially similar to those of a state receiver or trustee. In re Gomes, 19 B.R. 9, 1982 Bankr. LEXIS 4415 (Bankr. D.R.I. 1982).

10-18-5. Resignation and removal of receiver — Termination of receivership.

  1. The receiver may resign only on permission of a justice of the superior court.
  2. The receiver may be removed by any creditor or the debtor at any time by application to the court and upon good cause satisfactory to the court being shown for his or her removal.
  3. Upon resignation or removal of the receiver or termination of the receivership for any other reason:
    1. If such event occurs during the pendency of the plan, the court shall appoint a successor receiver in accordance with the provisions of § 10-18-4 ; and
    2. The receiver shall render full accounting to the court of the transactions under the plan during his or her service as receiver.

History of Section. P.L. 1972, ch. 186, § 1.

10-18-6. Compensation of receiver.

The receiver shall be compensated in an amount as determined by the superior court at such times as the court shall in its discretion determine. The receiver shall also be reimbursed for any costs incurred during the receivership. The amounts accrued as costs may be charged by the receiver to the debtor or deducted from distributions to be made by the receiver. Allocations of the amounts to particular distributions shall be within the discretion of the receiver.

History of Section. P.L. 1972, ch. 186, § 1.

NOTES TO DECISIONS

Criteria.

The compensation of officials appointed by either state or federal bankruptcy court should be based upon the same criteria, i.e., the time expended, the intricacy of work involved, the size of the estate, and the benefit of the services to the estate. In re Gomes, 19 B.R. 9, 1982 Bankr. LEXIS 4415 (Bankr. D.R.I. 1982).

10-18-7. Effect of filing.

  1. After the filing of the petition with the court under this chapter and until the dismissal of these proceedings, no prior creditor or subsequent creditor seeking the collection of any claim may levy or enforce any judgment, execution, attachment, garnishment, or other legal or equitable process or proceeding against the property, real or personal, including, but not limited to, wages, salaries, or commission of the debtor; nor may any assignment of wages be enforced against the debtor.
  2. Upon the filing of the petition, the court shall by order require that all such proceedings be so stayed and the debtor shall be entitled to have a copy of the order served upon any or all of his or her creditors and his or her employer(s).
  3. With respect to the claims to be amortized under this chapter, the time between the filing of the petition with the court or the inclusion of the claim in these proceedings, whichever is later, and the dismissal of these proceedings shall not be counted as a part of the period of any statute of limitations.

History of Section. P.L. 1972, ch. 186, § 1.

10-18-8. Filing of the accepted plan with the secretary of state and its effect.

  1. After the plan submitted by the receiver is approved by the court, it shall be filed by the clerk of the court with the secretary of state within twenty-one (21) days from the time of the original filing of the petition with the court. The filing shall have the following effect:
    1. Except as stated in § 10-18-11(b) , all subsequent creditors shall be excluded from the plan.
    2. All prior creditors who have not been included in the plan shall be excluded from the plan unless the creditor, the receiver or the debtor makes application to the court within ten (10) days after the filing of the plan with the secretary of state.
  2. All unsecured creditors excluded from the plan by force of subsections (a)(1) and (a)(2) of this section must wait until the dismissal of these proceedings before collecting upon their claims. Secured creditors’ rights are determined by §§ 10-18-10 and 10-18-11(c) .

History of Section. P.L. 1972, ch. 186, § 1.

10-18-9. Effect of approval of plan on prior unsecured creditors.

All prior unsecured creditors, who have been scheduled in the plan from the initial filing of the petition with the court or whose application has been submitted to the court within ten (10) days of filing with the secretary of state as provided in § 10-18-8(a)(2) , must join the plan if it is approved.

History of Section. P.L. 1972, ch. 186, § 1.

10-18-10. Effect of approval of plan on prior secured creditors.

  1. All prior secured creditors who have been scheduled in the plan from the initial filing of the petition with the court or whose application has been submitted to the court within ten (10) days of filing with the secretary of state as provided in § 10-18-8(a)(2) may either:
    1. Join the plan if approved and receive payments as determined by the plan; or
    2. Reclaim or repossess the collateral sold on security.
  2. If a prior secured creditor has not been scheduled in the plan from the initial filing of the petition with the court and whose application has not been submitted to the court within ten (10) days of the filing with the secretary of state as provided in § 10-18-8(a)(2) , he or she may reclaim or repossess the collateral sold on security if the debtor defaults upon the contract of sale unless the retention of the collateral by the debtor is essential to the continuance of his or her employment upon reasonable terms and conditions. In such case subsection (e) of this section shall apply.
  3. If a secured creditor under subsection (a)(2) or (b) of this section or § 10-18-11(c) reclaims or repossesses the collateral sold on security, that shall be the extent of his or her recovery.
  4. Notwithstanding § 10-18-7 , any action, judicial or non-judicial, by a secured creditor under subsection (a)(2) or (b) of this section or § 10-18-11(c) for the purpose of reclaiming or repossessing collateral sold on security shall be enforced.
  5. At any time either during the pendency of proceedings hereunder or pursuant to subsection (a)(2) or (b) of this section or § 10-18-11(c) and before a secured creditor shall have acquired actual possession of the collateral to which this subsection applies, the debtor may petition the court, upon notice to the secured creditor, to stay any action, judicial or nonjudicial, by the secured creditor to reclaim or repossess such collateral as the debtor shall identify in his or her petition on the grounds that the retention of the collateral by the debtor is essential to the continuance of his or her employment upon reasonable terms and conditions. Upon the filing of a written notice by the secured creditor, within twenty (20) days of the service upon him or her of a copy of the petition, the court shall order a hearing and, upon a determination for the debtor, shall order a stay which shall be effective during the pendency of these proceedings. The stay shall automatically terminate if the debtor shall fail to pay to the creditor on any installment date, as provided in the plan, a payment in the minimum amount of the approximate depreciation in the fair market value of the relevant collateral for the period since the previous payment or the installments actually due under the relevant deferred payment contract, whichever is less. The amount may be fixed by the court and may be varied from time to time upon petition to the court by the secured creditor, the receiver, or the debtor, with notice to all other parties.
  6. Notwithstanding subsection (e) of this section, a creditor may at any time during the pendency of proceedings herein, petition the court to reclaim or repossess such collateral as such creditor may identify in his or her petition. A creditor may also petition the court to direct the receiver to distribute assets in his or her possession. The court shall determine the manner of giving notice of such petitions and shall in its discretion grant, deny, or modify the creditor’s petition.

History of Section. P.L. 1972, ch. 186, § 1.

10-18-11. Subsequent creditors.

  1. All subsequent creditors who have obtained the receiver’s approval prior to their extension of credit may be included in the plan upon application to the court by the creditor, the receiver, or the debtor.
  2. The court, upon application by a creditor to be included in the plan, may include such creditors in the plan if it determines that the extension of credit to the debtor was reasonable. The court’s criteria in the process of determining the reasonableness of a creditor’s extension of credit shall include, but not be limited to, the following:
    1. Amount of credit extended;
    2. Purpose for which the credit was extended;
    3. Terms upon which the credit was extended;
    4. Debtor’s ability to meet this extra financial obligation in light of his or her financial position under the plan.
  3. If a subsequent secured creditor extends credit without the receiver’s approval, the secured creditor may reclaim or repossess the collateral sold on security if the debtor defaults upon the contract of sale unless the retention of such collateral by the debtor is essential to the continuance of his or her employment upon reasonable terms and conditions. In such case, § 10-18-10(e) shall apply.

History of Section. P.L. 1972, ch. 186, § 1.

10-18-12. Claims brought to judgment — Priority in case of default.

  1. All creditors (secured and unsecured, prior and subsequent, those included and those excluded from the plan) may bring their claims against the debtor to judgment.
  2. If these proceedings are terminated by dismissal, default, or otherwise:
    1. Any claim reduced to judgment by a subsequent creditor excluded from the plan shall be deemed to have been reduced to judgment one day after these proceedings are terminated.
    2. Any claim reduced to judgment by a prior creditor (whether included or excluded from the plan) or a subsequent creditor included in the plan within a reasonable time after termination of these proceedings shall be deemed to have been reduced to judgment as of the day these proceedings are terminated.

History of Section. P.L. 1972, ch. 186, § 1.

10-18-13. Establishment of plan.

  1. Upon his or her appointment, the receiver shall forthwith meet with the debtor, review the petition and send notice to each creditor listed in the petition and to any other creditor of whose existence as a creditor the receiver may learn within the notice period as prescribed in § 10-18-8(a)(2) . The notice shall include a copy of §§ 10-18-6 10-18-12 a schedule of the debtor’s obligations, and notice that a meeting shall be held at a place selected by the receiver and at a time not less than fifteen (15) nor more than thirty (30) days thereafter for the purposes of considering an amortization plan and of determining the claims to be covered by the plan.
  2. The amount of a creditor’s claim shall be the amount for which the debtor could have paid or prepaid the claim on a date ten (10) days after the petition was filed either: (1) pursuant to the terms of the obligation; (2) pursuant to the requirements of any applicable statute; or (3) in accordance with the customary practices of the creditor at such time, whichever is the lowest.
  3. All claims included in the plan shall bear interest during the pendency of the plan at the rate applicable to unpaid judgments in this state. If the plan so provides, the interest may be precomputed at the time the plan is established as if all payments were made on the scheduled installment dates and all payments actually made to creditors under the plan applied to the combined total of interest and principal without reference to the date the payments are actually made.
  4. The claim of any creditor under the plan shall not include the part of the obligation of the debtor to that creditor which, pursuant to the terms of the obligation and without reference in those terms to any provision accelerating any unpaid portion of the obligation because of debtor’s default or otherwise, is payable more than five (5) years from the date the petition is filed hereunder.
    1. Upon conclusion of the meeting, the receiver shall either:
      1. Report to the court that no equitable plan of amortization is feasible or needed in which case the court may forthwith dismiss the proceedings; or
      2. Recommend to the court a plan of amortization calculated by weekly or monthly payments to discharge in full the claims of all known creditors within a period of not exceeding five (5) years.
    2. The receiver shall attach to the plan the written consents and objections, if any, of the creditors present or represented at the meeting or who have otherwise submitted consents or objections to him or her, and an analysis, with his or her recommendations regarding the disposition of any claim in dispute.
  5. If satisfied that the plan is feasible and equitable, the court shall forthwith enter an order approving the plan and ordering the payment by the employer of the debtor of such salary, wages, commissions, or any combination thereof of the debtor to the receiver as provided by the plan and determining, for the purposes of the plan, the amounts of the claims; otherwise, the court shall enter an order dismissing these proceedings. However, if in any written objection a creditor shall ask for a hearing respecting the plan the court shall set a date for a hearing as soon as practicable on notice to all parties. At that hearing the court shall enter an order either approving the plan, if satisfied that it is feasible and equitable, or dismissing these proceedings or making and approving such modifications of the plan as the court deems just. If the plan is approved, the clerk of the court shall so notify the employer or employers of the petitioner and serve him or her with a copy of the order of the court.

History of Section. P.L. 1972, ch. 186, § 1.

10-18-14. Contents and payments of plan.

  1. The plan, giving due regard to the reasonable requirements of the debtor and his or her dependents, shall provide for periodic payments by or on behalf of the debtor to the receiver by virtue of the wage assignment and court order, or otherwise; and the debtor may make additional payments to the receiver. If the debtor is required by an order of a court of competent jurisdiction to pay money for the support and maintenance of dependents, then, upon the filing with the court of a certified copy of the order, the plan shall be modified to the extent required to comply with the order.
  2. In no case shall the plan provide for receipt by the debtor from the receiver or otherwise of an amount less than the minimum amount of the income of the debtor that is exempt from garnishment under the laws of this state or federal law.
  3. Subject both to § 10-18-10(e) on minimum amounts to be paid to certain secured creditors and to this section, the plan shall provide for the receiver to pay, to the extent of funds received by him or her, a pro rata share of the balance to each creditor on the basis of the amount of the claim of each creditor; provided, however, that claims of ten dollars ($10.00) or less may be paid in full.
  4. The plan shall provide that if the total amount available to be distributed is less than two hundred fifty dollars ($250), the receiver may deposit the undistributed amount in a special trust account until the next distribution date that the total amount is two hundred fifty dollars ($250) or more.
  5. Any money which is not called for by any creditor, or, if sent to a creditor, is returned undelivered and which remains in the possession of the receiver for more than six (6) months after these proceedings are dismissed, must be paid by the receiver to the other creditors in proportion to their unpaid obligations under the plan on the date these proceedings were dismissed, provided that no creditor is paid in excess of the full amount of his or her claim as of the date payment is made. If no such creditors exist, then the money shall be paid to the debtor.
  6. The court may, upon application of the debtor, the receiver, or any creditor, upon notice to all other parties, at any time or times during the pendency of these proceedings, increase or reduce the amount of the installment payments provided by the plan, or extend or shorten the time for any payments, or otherwise alter the provisions of the plan, where it shall be made to appear, after hearing, that the circumstances of the debtor so warrant or require.

History of Section. P.L. 1972, ch. 186, § 1.

10-18-15. Dispute of claims during pendency of proceedings.

  1. The court, receiver, debtor, or any creditor may dispute the claim of any creditor at any time during the pendency of these proceedings. Upon the filing with the court of a written notice of intention to dispute a claim or upon the determination of the court, on its own motion, to dispute a claim, the court shall cause notice of a hearing thereon to be served on all parties and hold a hearing thereon. At the hearing the court may establish the amount of the claim or make such other determination as shall be fair and equitable under the circumstances.
  2. Neither the determination of the amount of any claim for the purposes of the plan, nor the acceptance of payments thereunder, shall affect the right of any creditor to litigate his or her claim and obtain judgment thereon, or the right of the debtor to dispute it, and the amount of any judgments shall be substituted by the receiver for the amount theretofore being used as a basis for distribution.

History of Section. P.L. 1972, ch. 186, § 1.

10-18-16. Termination of the plan.

  1. If any payment provided by the plan to be made to the receiver by or on behalf of the debtor is in default or if the debtor has otherwise violated the provisions of this chapter or of the plan, the receiver or any creditor may, and if the default shall have continued for a period of more than thirty (30) days the receiver shall, report the matter to the court. The receiver shall submit a report and his or her recommendations to the court and the court may terminate the plan.
  2. If the addition of any prior creditor included in the plan by reason of the provision in § 10-18-8(a)(2) or of any subsequent creditor by reason of § 10-18-11(a) and (b) shall make continuation of the plan unfeasible, the court may, upon petition of the debtor, the receiver, or any creditor, with notice to all other parties, and upon a hearing, terminate these proceedings.
  3. If the debtor makes preferential payments to creditors participating in the plan during the pendency of the proceedings or appears for any reason to be abusing the privileges of this chapter, the receiver shall promptly report the matter to the court and the court may terminate the plan. If the court finds that preferential payments have been made to those creditors participating in the plan, it shall order those creditors who had received a preferential payment to pay over the amount of the preferential payment to the receiver who shall apply it to reduce the debtor’s indebtedness under the plan pro rata, among all creditors participating in the plan. A preferential payment is any payment to a creditor participating in the plan which is, at the time of the payment, in excess of what he or she is entitled to under the plan.
  4. If the plan is terminated prior to completion of the plan, the court shall award a reasonable fee to the receiver which shall be preferred to all other claims against the debtor, except federal or state obligations.
  5. In deciding whether or not to terminate a wage earner receivership plan, whenever the discretion is given, the court shall consider the following criteria:
    1. The feasibility of the plan; whether in light of the debtor’s income and the size of the debt incurred it is reasonable for the debt to be paid off on an amortized basis within the time remaining in the plan;
    2. The knowledge which subsequent creditors had, or should have had, when they extended credit of the prior debts of the debtor;
    3. The knowledge which subsequent creditors had, or should have had, when they extended credit, of the insolvency of the debtor;
    4. The intent of the debtor to abuse the plan by unreasonably incurring debts which, if included in the plan, would make the plan unfeasible;
    5. Prejudice to the interests of those creditors who have participated in the plan in not being able to collect their debts by those means proscribed by this chapter during the pendency of the plan.

History of Section. P.L. 1972, ch. 186, § 1.

10-18-17. Duration of proceedings.

  1. Receivership proceedings under this chapter shall continue during the pendency of the plan or until all debts of the debtor are sooner paid or these proceedings are sooner terminated as provided in this chapter.
  2. Upon termination of these proceedings, the court shall discharge the receiver and notify the debtor’s employer who had been subject to an assignment of wages under this chapter that the debtor is no longer subject to such assignment. The receiver shall return to the debtor all assignments received by him or her under this chapter marked “Cancelled.”
  3. If any claim covered by the plan is unpaid in whole or in part at the termination of the plan, all interest accrued during the pendency of these proceedings and unpaid shall be added to the principal amount of the debt, but that interest shall not bear additional interest thereafter.

History of Section. P.L. 1972, ch. 186, § 1.

10-18-18. Subpoenas — Costs.

The court may issue subpoenas to compel the attendance of witnesses at hearings held under this chapter. Any costs in connection with such hearings may be assessed against any of the parties in such manner as the court may deem just.

History of Section. P.L. 1972, ch. 186, § 1.

10-18-19. Deferred obligations of debtor during pendency of receivership proceedings.

During the pendency of these receivership proceedings, the debtor shall not voluntarily incur obligations for the payment of money at any time in excess of an aggregate amount of one hundred dollars ($100) or incur any secured obligation without the prior approval of the receiver upon the receiver’s determination that the obligations are for the reasonable living requirements of the debtor or his or her family or dependents and that payments of the obligations will not represent an undue hazard to the successful completion of the plan.

History of Section. P.L. 1972, ch. 186, § 1.

10-18-20. Notices — Employment changes.

  1. All notices provided for in this chapter may be given by registered or certified mail with return receipt requested, and if the return receipt is not received, the court may order the notice served as process is served in the court, and the cost thereof shall be paid by the person giving notice.
  2. The period of notice for all court hearings for which notice is required shall be at least five (5) days, unless the court by rule or special order shall prescribe a different period of time.
  3. If the debtor changes his or her employer or acquires an additional employer, he or she shall notify the receiver and execute and deliver to the receiver a new assignment of his or her wages if required and the receiver shall give written notice thereof to the new employer.

History of Section. P.L. 1972, ch. 186, § 1.

10-18-21. Payments by employers.

  1. Payments by any employer to a receiver in pursuance of notice from the court or the filing of a petition under this chapter or the receipt of an assignment of wages, salary or commissions by a receiver shall be payment to the employee the same as if received by the employee personally, regardless of any defect or invalidity in the instruments or these proceedings, and regardless of any statute of this state relating to wage assignments, garnishments, exemptions, or otherwise to the contrary.
  2. Any employer who pays any salary, wages or commission in violation of a notice received by him or her from the court shall be liable for any sums so paid.

History of Section. P.L. 1972, ch. 186, § 1.

Chapter 19 Rhode Island Medical Liability Actions [Repealed.]

10-19-1 — 10-19-10. Repealed.

History of Section. A chapter concerning medical liability actions, and consisting of §§ 10-19-1 — 10-19-7 (P.L. 1981, ch. 187, § 2) was repealed by P.L. 1985, ch. 150, § 24, effective June 11, 1985. The chapter had been previously declared unconstitutional in Boucher v. Sayeed, 459 A.2d 87 (1983).

Repealed Sections.

A former chapter (P.L. 1976, ch. 244, § 6; P.L. 1977, ch. 77, § 6; P.L. 1978, ch. 149, § 4; P.L. 1980, ch. 274, § 1; P.L. 1980, ch. 285, § 1), providing for a medical liability mediation panel, was repealed by P.L. 1981, ch. 187, § 1. That former chapter consisted of §§ 10-19-1 10-19-1 0.

Chapter 20 State Environmental Rights

10-20-1. Legislative findings and purpose.

The general assembly finds and declares that each person is entitled by right to the protection, preservation, and enhancement of air, water, land, and other natural resources located within the state and that each person has the responsibility to contribute to the protection, preservation, and enhancement thereof. The legislature further declares its policy to create and maintain within the state conditions under which man and nature can exist in productive harmony in order that present and future generations may enjoy clean air and water, productive land, and other natural resources with which this state has been endowed. Accordingly, it is in the public interest to provide an adequate civil remedy to protect air, water, land and other natural resources located within the state from pollution, impairment, or destruction.

History of Section. P.L. 1978, ch. 224, § 1.

Comparative Legislation.

Actions and injunctions to maintain environmental standards:

Conn. Gen. Stat. § 22a-6.

Collateral References.

Application of Statutes of Limitations (42 USCS § 9613(g)) in action under § 113(f) of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 USCS § 9613(f)) for contribution for response costs or damages. 143 A.L.R. Fed. 591.

Construction and application of Statute of Limitations (42 USCS § 9613(g)(1)) for action under § 107 of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 USCS § 9607) for natural resource damages. 144 A.L.R. Fed. 285.

Landowner’s right to relief against pollution of his water supply by industrial or commercial waste. 39 A.L.R.3d 910.

Liability of oil and gas lessee or operator for injuries to or death of livestock. 51 A.L.R.3d 304.

Maintainability in state court of class action for relief against air or water pollution. 47 A.L.R.3d 769.

Modern status of rules as to balance of convenience or social utility as affecting relief from nuisance. 40 A.L.R.3d 601.

Necessity of showing scienter, knowledge, or intent, in prosecution for violation of air pollution or smoke control statute or ordinance. 46 A.L.R.3d 758.

Operation of cement plant as nuisance. 82 A.L.R.3d 1004.

Preliminary mandatory injunction to prevent, correct, or reduce effects of polluting practices. 49 A.L.R.3d 1239.

Recovery in trespass for injury to land caused by airborne pollutants. 2 A.L.R.4th 1054.

Right to maintain action to enjoin public nuisance as affected by existence of pollution control agency. 60 A.L.R.3d 665.

State and local regulation of private landowner’s disposal of solid waste on own property. 37 A.L.R.4th 635.

Validity and construction of statutes, ordinances, or regulations controlling discharge of industrial wastes into sewer system. 47 A.L.R.3d 1224.

When statute of limitations begins to run as to cause of action for nuisance based on air pollution. 19 A.L.R.4th 456.

10-20-2. Definitions.

For purposes of this chapter, the following terms have the meanings given them in this section:

  1. “Environmental control agency” shall mean any state agency which is empowered to protect, preserve, or enhance the natural resources of the state which includes, but is not limited to, the department of environmental management, the department of health, coastal resources management council, public utilities commission, the statewide planning program, and the water resources board.
  2. “Environmental quality standard” shall mean any statute, ordinance, limitation, regulation, rule, order, license, stipulation, agreement, or permit of the state or any instrumentality, agency, or political subdivision thereof.
  3. “Natural resources” shall include, but not be limited to, all mineral, animal, botanical, air, water, land, timber, soil, quietude, and recreational resources.
  4. “Nonresident individual” means any natural person, or his or her personal representative, who is not domiciled or residing in the state when suit is commenced.
  5. “Person” means any natural person, any state, municipality, or other governmental or political subdivision or other public agency or instrumentality, any public or private corporation, any partnership, firm, association, or other organization, any receiver, trustee, assignee, agent, or other legal representative of any of the foregoing, and any other entity.
  6. “Pollution, impairment, or destruction” is any conduct by any person which violates, or is likely to violate, any environmental quality standard which was issued prior to the date the alleged violation occurred or is likely to occur or any conduct which materially adversely affects or is likely to materially adversely affect the environment.

History of Section. P.L. 1978, ch. 224, § 1.

10-20-3. Civil actions — Environmental advocate — Notice — Intervention.

  1. Any city or town may maintain an action in a court of competent jurisdiction against any person to enforce, or to restrain the violation of, any environmental quality standard which is designed to prevent or minimize pollution, impairment, or destruction of the environment.
  2. Except in those instances where the conduct complained of constitutes a violation of an environmental quality standard which establishes a more specific standard for the control of pollution, impairment, or destruction of the environment, any city or town may maintain an action in any court of competent jurisdiction for declaratory and equitable relief against any other person for the protection of the environment, or the interest of the public therein, from pollution, impairment, or destruction.
  3. Within the department of attorney general there shall be an environmental advocate, to be appointed by the attorney general from among the assistant and special assistant attorneys general.
  4. The environmental advocate shall perform the following duties:
    1. Maintain and/or intervene in civil actions authorized by this chapter.
    2. Review periodically the procedures and environmental quality standards established by the state, or any instrumentality, agency, or subdivision thereof to carry out the provisions of this chapter.
    3. Review complaints of persons and investigate those which appear to constitute a violation of environmental quality standards, or any provision of this chapter.
    4. Investigate and report to the director or person in charge of any state agency, instrumentality, or political subdivision any occurrences, conditions, or practices with respect to procedures, personnel, environmental quality standards, or facilities, which reflect inadequacies with reference to the provisions of this chapter.
    5. To take all possible action, including but not limited to programs of public education, legislative advocacy, and formal legal action, to secure and insure compliance with the provisions of this chapter and any promulgated environmental quality standards.
  5. No action may be commenced by a city or town pursuant to this act unless the municipality seeking to commence the suit shall, at least sixty (60) days prior to the commencement thereof, direct a written notice of the intention by certified mail to the environmental advocate, the appropriate environmental control agency or agencies, the governing body of the municipality in which the alleged conduct has or is likely to occur, and to the intended defendant; provided, however, that if the plaintiff can show that immediate and irreparable damage will probably result, the court may waive the foregoing requirement of notice.
  6. In any action maintained under this section, the environmental advocate may intervene as a matter of right and may appoint outside counsel where as a result of the intervention he or she may represent conflicting or adverse interests. Other interested parties may be permitted to intervene on such terms as the court may deem just and equitable in order to effectuate the purposes and policies set forth in § 10-20-1 .

History of Section. P.L. 1978, ch. 224, § 1.

NOTES TO DECISIONS

Elements of Nuisance.
— Negligence.

Negligence is not a necessary element of a nuisance case involving contamination of public or private waters by pollutants percolating through the soil and traveling underground routes. Wood v. Picillo, 443 A.2d 1244, 1982 R.I. LEXIS 833 (R.I. 1982).

Collateral References.

Liability of parent or successor corporation, or corporate shareholders, in action pursuant to Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 USCS §§ 9601-9675). 121 A.L.R. Fed. 173.

What are “necessary costs of response” within meaning of § 107(a)(4)(B) of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 USC § 9607(a)(4)(B)). 113 A.L.R. Fed. 1.

10-20-4. Burden of proof.

  1. In any action maintained under § 10-20-3 , where the subject of the action is conduct governed by an environmental quality standard promulgated or issued by an environmental control agency, whenever the plaintiff shall have made a prima facie showing that the conduct of the defendant violates or is likely to violate the environmental quality standard, the defendant may rebut the prima facie showing by the submission of evidence to the contrary.
  2. In any other action maintained under § 10-20-3 , whenever the plaintiff shall have made a prima facie showing that the conduct of the defendant has, or is likely to cause the pollution, impairment or destruction of the air, water, land, or other natural resources located within the state, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant may also show, by way of an affirmative defense, that there is no feasible, prudent, and economically viable alternative and the conduct at issue is consistent with the reasonable requirements of the public health, safety, and welfare.

History of Section. P.L. 1978, ch. 224, § 1.

10-20-5. Appointment of referee.

The court may appoint a referee, who shall be a disinterested person, to take testimony and make a report to the court in any such action.

History of Section. P.L. 1978, ch. 224, § 1.

10-20-6. Relief.

The court may grant declaratory relief, temporary and permanent equitable relief, or may impose such conditions upon a party as are necessary or appropriate to protect the air, water, land, or other natural resources located within the state from pollution, impairment, or destruction, considering the health, safety, and welfare of the public, and the availability of feasible, prudent, and economically viable alternatives.

History of Section. P.L. 1978, ch. 224, § 1.

10-20-7. Remand for administrative or licensing proceedings.

  1. If administrative, licensing, or other similar proceedings are required to determine the legality of the defendants’ conduct, the court shall remand the parties to such proceedings. If administrative, licensing, or other similar proceedings are available to determine the legality of the defendants’ conduct, the court may remand the parties to such proceedings. In so remanding the parties the court may grant temporary equitable relief where appropriate as set forth in § 10-20-6 . In so remanding the parties the court shall retain jurisdiction of the cause pending completion thereof.
  2. Upon completion of the proceedings, the court shall adjudicate the impact of the defendants’ conduct, program or product on the air, water, land, or other natural resources located within the state in accordance with §§ 10-20-2 10-20-6 . In such adjudication, the court may order that additional evidence be taken to the extent necessary.
  3. Where, as to any administrative, licensing, or other similar proceedings referred to in subsection (a), judicial review thereof is available, notwithstanding any other provisions of law to the contrary, the court originally taking jurisdiction shall maintain jurisdiction for purposes of judicial review.
  4. Nothing in this section shall be applicable to any action maintained under § 10-20-9 or to any appropriate administrative proceeding required thereunder.

History of Section. P.L. 1978, ch. 224, § 1.

10-20-8. Administrative and licensing proceedings — Intervention by environment advocate.

  1. Except as otherwise provided in § 10-20-9 , in any administrative, licensing, or other similar proceedings and in any action for judicial review thereof which is made available by law, the environmental advocate may intervene on such terms as the court may deem just and equitable in order to effectuate the purposes and policies set forth in § 10-20-1 .
  2. In any administrative, licensing, or other similar proceedings, the agency shall consider the alleged impairment, pollution, or destruction of the air, water, land, or other natural resources located within the state and no conduct shall be authorized or approved which does, or is likely to have, such effect so long as there is a feasible, prudent, and economically viable alternative consistent with the reasonable requirements of the public health, safety, and welfare.

History of Section. P.L. 1978, ch. 224, § 1.

10-20-9. Actions against state — Challenge to environmental quality standard — Remand to state agency — Intervention — Venue.

  1. Civil actions.  As hereinafter provided in this section, any city or town residing within the state or the environmental advocate may maintain a civil action in the superior court for declaratory or equitable relief against the state or any agency or instrumentality thereof where the nature of the action is a challenge to an environmental quality standard for which the applicable statutory appeal period has elapsed.
  2. Burden of proof.  In any action maintained under this section, the plaintiff shall have the burden of proving by a preponderance of the evidence that the environmental quality standard is substantially inadequate to protect the air, water, land, or other natural resources located within the state from pollution, impairment, or destruction.
  3. Remand; judicial review.  In any action maintained under this section, the superior court, upon showing by the plaintiff of those matters specified in subsection (b), may remand the parties to the state agency or instrumentality that promulgated the environmental quality standard which is the subject of the action, requiring the agency or instrumentality to institute the appropriate administrative proceedings to consider and make findings and an order on those matters specified in subsection (b). In so remanding the parties, the court may grant temporary equitable relief where appropriate to prevent irreparable injury to the air, water, land, or other natural resources located within the state. In so remanding the parties, the court shall retain jurisdiction for purposes of judicial review to determine whether the order of the agency is supported by a preponderance of the evidence. If plaintiff fails to establish a prima facie showing, the court shall dismiss the action.
  4. Intervention.  In any action maintained under this section, any person residing within the state or the environmental advocate may intervene as a party, provided that the person makes timely application to the superior court prior to the court’s remand of the action as specified in subsection (c).
  5. Venue.  Any action maintained under this section shall be brought in the superior court of Providence county.

History of Section. P.L. 1978, ch. 224, § 1.

10-20-10. Rights and remedies nonexclusive.

No existing civil or criminal remedy for any wrongful action shall be excluded or impaired by § 10-20-3 . The rights and remedies provided herein shall be in addition to any administrative, regulatory, statutory, or common law rights and remedies now or hereafter available.

History of Section. P.L. 1978, ch. 224, § 1.

10-20-11. Short title.

Chapter 20 of this title may be cited as the “Rhode Island Environmental Rights Act”.

History of Section. P.L. 1978, ch. 224, § 1.