Chapter 1 Causes of Action

9-1-1. Action on promissory note.

Whenever any persons or bodies corporate, by themselves or by any person by them lawfully authorized for the purpose, shall make or sign any promissory note whereby the persons or bodies corporate shall promise to pay to any other person or body corporate any sum of money or specific article mentioned in the note, the sum or article shall be taken and construed to be, by virtue thereof, due and payable to the person or body corporate; and the person or body corporate may maintain an action for the sum or article against the person or body corporate who shall have made the promissory note.

History of Section. G.L. 1896, ch. 166, § 6; G.L. 1909, ch. 201, § 4; G.L. 1923, ch. 228, § 4; G.L. 1938, ch. 457, § 1; G.L. 1956, § 9-1-1 ; P.L. 1997, ch. 326, § 12.

Rules of Court.

Form of complaint on promissory note, Super. Ct. R. Civ. P., Form 3.

9-1-2. Civil liability for crimes and offenses.

Whenever any person shall suffer any injury to his or her person, reputation, or estate by reason of the commission of any crime or offense, he or she may recover his or her damages for the injury in a civil action against the offender, and it shall not be any defense to such action that no criminal complaint for the crime or offense has been made; and whenever any person shall be guilty of larceny, he or she shall be liable to the owner of the money or articles taken for twice the value thereof, unless the money or articles are restored, and for the value thereof in case of restoration.

History of Section. C.P.A. 1905, § 236; G.L. 1909, ch. 283, § 16; G.L. 1923, ch. 333, § 16; G.L. 1938, ch. 478, § 1; G.L. 1956, § 9-1-2 ; P.L. 1965, ch. 55, § 6.

Law Reviews.

Rebecca M. Murphy, Murder, Fraud, and Tortious Interference: The Interplay Between Probate Court Jurisdiction and Superior Court Jurisdiction in Rhode Island, 20 Roger Williams U. L. Rev. 404 (2015).

John W. Caruolo, 2016 Survey, Cases: Labor and Employment Law: Goddard v. APG Security-RI, LLC, 22 Roger Williams U. L. Rev. 842 (2017).

NOTES TO DECISIONS

In General.

This section is an enabling act giving a person injured as a result of a crime or offense a right of action where none existed at common law. Lyons v. Scituate, 554 A.2d 1034, 1989 R.I. LEXIS 30 (1989).

This section creates a new right of action in that a victim can bring an action for damages for injuries even if no criminal complaint for the crime or offense has been filed. However, it does not create a distinct cause of action for purposes of determining the appropriate statute of limitations. Lyons v. Scituate, 554 A.2d 1034, 1989 R.I. LEXIS 30 (1989).

Trial justice properly granted an insurer’s R.I. R. Civ. P. 50 motion on an insured’s claim of civil liability under R.I. Gen. Laws § 9-1-2 for the insurer’s violation of R.I. Gen. Laws § 7-15-2(b) , as the insured did not establish that the insurer engaged in criminal activity. Zarrella v. Minn. Mut. Life Ins. Co., 824 A.2d 1249, 2003 R.I. LEXIS 106 (2003).

Allegations of Complaint.

Complaint to recover in civil proceeding for commission of a crime does not have to be stated with the same technical accuracy required in a criminal complaint, as long as offense is described sufficiently for identification. Williams v. Smith, 28 R.I. 531 , 68 A. 306, 1907 R.I. LEXIS 73 (1907).

Claims under R.I. Gen Laws § 9-1-2 were not dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because, if victims of a night club fire could have established that a town’s fire inspector was egregiously negligent in carrying out, or failing to carry out, his duties in enforcing the fire code, then it was possible that his negligence could have been found to have been gross or criminal negligence. Gray v. Derderian, 400 F. Supp. 2d 415, 2005 U.S. Dist. LEXIS 28535 (D.R.I. 2005).

Trial justice did not err by sua sponte applying a compensatory damages award to plaintiffs’ R.I. Gen. Laws § 9-1-2 claim as well as to their wrongful death claim, even though the complaint did not specifically seek compensatory damages. Because the defendant failed to object to the application of compensatory damages, he implicitly consented to the trial justice’s action. Tyre v. Swain, 946 A.2d 1189, 2008 R.I. LEXIS 57 (2008).

In a suit brought by plaintiffs alleging a fraudulent scheme involving annuity insurance investments, the federal district court denied defendants’ motion to dismiss for failure to state a claim as to plaintiffs’ counts alleging civil liability for crimes and offenses under Rhode Island law because under the pleading standard of Fed. R. Civ. P. 8, the court found that the catchall phrase “any writing whatsoever purporting to contain evidence of any debt, contract, or promise” in R.I. Gen. Laws § 11-17-1 arguably encompassed the annuity applications, which contained evidence of a promise. W. Reserve Life Assur. Co. v. Caramadre, 847 F. Supp. 2d 329, 2012 U.S. Dist. LEXIS 14327 (D.R.I. 2012), aff'd, 793 F.3d 168, 2015 U.S. App. LEXIS 12505 (1st Cir. 2015).

Criminal Intent.

Plaintiff could not show that the social hosts were liable pursuant to R.I. Gen. Laws § 9-1-2 for supplying the plaintiff and her boyfriend with alcohol for more than a three-hour period, which resulted in the boyfriend driving into a utility pole after the boyfriend and plaintiff left the residence. The plaintiff did not show that the social hosts had the intent necessary pursuant to R.I. Gen. Laws § 11-1-3 to aid and abet a criminal act. Willis v. Omar, 954 A.2d 126, 2008 R.I. LEXIS 84 (2008).

Criminal Proceedings Prerequisite.

An action could not be maintained under P.S. 1882, ch. 204, § 21, if the alleged crime committed was based upon the violation of a statute which was too indefinite and uncertain to impose criminal liability upon the defendant. Maker v. Slater Mill & Power Co., 15 R.I. 112 , 23 A. 63, 1885 R.I. LEXIS 59 (1885).

Plaintiff was entitled to maintain action under G.L. 1896, ch. 233, § 16, where defendant in criminal proceeding was fined following a plea of nolo contendere, since there was a conviction. Barker v. Almy, 20 R.I. 367 , 39 A. 185, 1898 R.I. LEXIS 48 (1898).

If plaintiff entrusted money to defendant for use of another party for investment purposes, and defendant used money to speculate and lost it, the defendant was not subject to suit for recovery of money if no complaint had been made for larceny. Brady v. Messler, 27 R.I. 373 , 62 A. 511, 1905 R.I. LEXIS 99 (1905).

Damages.

Even assuming that an alleged violation of the former version of § 34-18-22.3 sufficiently constituted an “offense” under this section, summary judgment was properly granted on the former lessee’s claim under this section because the lessee did not allege that he had suffered any damages as a result of the nonresident landlord’s failure to designate an in-state agent for service of process during the years of the tenancy. Olsen v. DeMayo, 210 A.3d 431, 2019 R.I. LEXIS 90 (2019).

Damages for Larceny.

This section is remedial and not penal; therefore, an action for double damages for larceny survived the death of the plaintiff. Aylsworth v. Curtis, 19 R.I. 517 , 34 A. 1109, 1896 R.I. LEXIS 33 (1896).

This statute is in derogation of the common law, and the plaintiff, in order to recover double damages for larceny, must show a conviction or admission of guilt in some criminal proceeding. Da Costa v. Rose, 70 R.I. 163 , 37 A.2d 794, 1944 R.I. LEXIS 31 (1944).

The legislature in adopting this section intended that victims of larceny be compensated generously. Ludwig v. Kowal, 419 A.2d 297, 1980 R.I. LEXIS 1800 (1980).

In interpreting this statute, effectuation of the legislative intent requires that the risk of loss resulting from fluctuations in value because of inflation be placed upon the malefactor rather than upon the victim. Ludwig v. Kowal, 419 A.2d 297, 1980 R.I. LEXIS 1800 (1980).

One who claims to be a victim of larceny and seeks statutory double damages may not prove guilt of larceny in the civil action except by proof of a criminal conviction or of an admission of guilt in a criminal proceeding. Ludwig v. Kowal, 419 A.2d 297, 1980 R.I. LEXIS 1800 (1980).

The plaintiff’s only obligation under this section was to establish defendant’s guilt of the crime of larceny by proof either of a conviction or of an admission of guilt in a prior prosecution. Ludwig v. Kowal, 419 A.2d 297, 1980 R.I. LEXIS 1800 (1980).

Employer Drug Testing Statute.

Violations of the employer drug testing statute (EDTS), § 28-6.5-1 , result in “injuries to the person” as contemplated by the three-year statute of limitations and, accordingly, are subject to the three-year period in § 9-1-14 rather than the 10-year period in § 9-1-13 ; moreover, actions under this section for civil liability for the victims of criminal offenses, which would include the misdemeanor offense created by the EDTS, are also subject to the three-year statute of limitations. Because an employee filed her action more than three years after the alleged violation of the EDTS, the claims were time-barred. Goddard v. APG Security-RI, LLC, 134 A.3d 173, 2016 R.I. LEXIS 34 (2016).

Form of Action.

An action for money had and received will lie where one has obtained money from another by oppression, imposition, extortion or deceit, and the law implies the promise from such person to return it to the lawful owner. Williams v. Smith, 29 R.I. 562 , 72 A. 1093, 1909 R.I. LEXIS 55 (1909).

Where the action brought to recover double damages for embezzlement was begun by writ of summons and declaration and alleged that the defendant as plaintiff’s bookkeeper used plaintiff’s money for her own use, the action was in trespass, rather than assumpsit, so as to warrant a body execution. Da Costa v. Rose, 71 R.I. 124 , 42 A.2d 665, 1945 R.I. LEXIS 24 (1945).

Superior court had jurisdiction over a wrongful death complaint brought under the Slayer’s Act, R.I. Gen. Laws § 33-1.1-1(3) , that sought civil liability for a criminal act under R.I. Gen. Laws § 9-1-2 ; the complaint essentially sought a declaration under the Uniform Declaratory Judgment Act, R.I. Gen. Laws § 9-30-1 et seq., that the husband was a slayer of the decedent. Once a declaration was made, a probate court could determine what effect that declaration had on asset distribution. Tyre v. Swain, 946 A.2d 1189, 2008 R.I. LEXIS 57 (2008).

Limitations Period.

The limitation period set forth in § 9-1-14(b) for “injuries to the person” is the appropriate statute of limitations, where the nature of plaintiff ’s claim for relief under this section arises out of an alleged assault and battery for which she is entitled to relief by reason of being a person in the eyes of the law. Lyons v. Scituate, 554 A.2d 1034, 1989 R.I. LEXIS 30 (1989).

Where the nature of plaintiffs’ claims arose out of alleged sexual abuse by priest-defendants, damages were being sought for the sexual abuse, not for any alleged conspiracy or cover-up by hierarchy-defendants, and the limitation period set forth in § 9-1-14(b) was applicable. Kelly v. Marcantonio, 187 F.3d 192, 1999 U.S. App. LEXIS 18396 (1st Cir. 1999).

Because the cause of action for criminial usury under § 6-26-3 and this section accrued in December 2000, and the complaint was not filed until April 2011, the borrowers’ claims were barred by the 10-year statute of limitations in § 9-1-13 ; the predicate conduct on which the borrowers relied in asserting their claims occurred when the lenders executed the loan documents at issue that backdated and charged the retroactive usurious interest rates. Commerce Park Realty, LLC v. HR2-A Corp., 253 A.3d 868, 2021 R.I. LEXIS 85 (R.I. 2021).

Receiver of Stolen Goods.

A fraudulent receiver who knows the goods to be stolen is guilty of larceny under G.L. 1923, ch. 397, § 13 (§ 11-41-2 ), hence liable for twice the value under this section. O'Brien v. Moskol, 45 R.I. 486 , 123 A. 568, 1924 R.I. LEXIS 14 (1924).

Violations of Federal Law.

Trial court erred by granting employer’s motion for judgment as a matter of law since the trial court assumed that R.I.G.L. § 9-1-2 is not applicable for federal crimes; there is no such limitation within the statute. Mello v. DaLomba, 798 A.2d 405, 2002 R.I. LEXIS 138 (2002).

Civil action based on violation of a federal criminal statute forbidding electronic eavesdropping without consent or a warrant required the normal quantum of proof required in a civil action, by a preponderance of the evidence, not proof beyond a reasonable doubt as required for criminal liability, and the trial court properly instructed the jury to that effect. Cady v. IMC Mortg. Co., 862 A.2d 202, 2004 R.I. LEXIS 204 (2004).

Wrongful Taking Technical Only — Damages.

Where the defendant towed plaintiff’s car to his garage at the request of the police, after it had been stolen and abandoned, if defendant was guilty of any wrongful taking and detention of plaintiff’s property, it was merely technical and the damage, if any, was so minimal as to call for the application of the maxim de minimus non curat lex. Manufacturers Supply Co. v. Mullins, 92 R.I. 191 , 167 A.2d 755, 1961 R.I. LEXIS 19 (1961).

9-1-2.1. Civil liability for stalking.

  1. Any person who suffers harm pursuant to chapter 59 of title 11 may recover his or her damages in a civil action against the offender.
  2. As used in this section:
    1. “Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of “course of conduct.”
    2. “Harasses” means following a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or bothers the person, and which serves no legitimate purpose. The course of conduct must be of a kind that would cause a reasonable person to suffer substantial emotional distress, or be in fear of bodily injury.

History of Section. P.L. 2001, ch. 198, § 1; P.L. 2001, ch. 279, § 1.

9-1-3. Liability of parents for torts of minors.

The parent or parents of any unemancipated minor or minors, which minor or minors willfully or maliciously cause damage to any property or injury to any person, shall be jointly and severally liable with the minor or minors for the damage or injury to an amount not exceeding fifteen hundred dollars ($1,500) if the minor or minors would have been liable for the damage or injury if they had been adults; provided, nothing herein shall be construed to relieve the minor or minors from personal liability for the damage or injury. The liability herein provided for shall be in addition to and not in lieu of any other liability which may exist at law.

History of Section. P.L. 1956, ch. 3749, § 1; G.L. 1956, § 9-1-3 ; P.L. 1974, ch. 137, § 1; P.L. 1981, ch. 296, § 1.

Collateral References.

Application of adult standard of care to infant handling firearms. 47 A.L.R.3d 620.

Liability for injury or damage intentionally inflicted by minor child. 54 A.L.R.3d 974.

Liability of parent for injury caused by child riding a bicycle. 70 A.L.R.3d 611.

Modern trends as to tort liability of child of tender years. 27 A.L.R.4th 15.

Validity and construction of statutes making parents liable for torts committed by their minor children. 8 A.L.R.3d 612.

9-1-3.1. Liability of parents and unemancipated minors for torts to each other.

A parent may be held liable for injuries caused to his or her unemancipated minor child by the parent’s negligent acts or omissions. In all cases in which the injured minor is living, prior to the commencement of any civil action hereunder, a petition shall be brought in the superior court in the county in which the injured minor resides for the appointment of a guardian ad litem to pursue the action on behalf of the minor. The guardian ad litem shall not be a member of the minor’s family. Once appointed, the guardian ad litem shall be empowered to make all decisions on behalf of the minor relating to the cause of action against the parent. If the minor is deceased, the civil action may be commenced by his or her executor or administrator.

History of Section. P.L. 1984, ch. 438, § 1.

Collateral References.

Action against parent by or on behalf of unemancipated minor child for wrongful death of other parent. 87 A.L.R.3d 849.

Death action by or in favor of parent against unemancipated child. 62 A.L.R.3d 1299.

Liability of parent for injury to unemancipated child caused by parent’s negligence — modern cases. 6 A.L.R.4th 1066.

Negligence of one parent contributing to injury or death of child as barring or reducing damages recoverable by other parent for losses suffered by other parent as result of injury or death of child. 26 A.L.R.4th 396.

Prosecution of mother for prenatal substance abuse based on endangerment of or delivery of controlled substance to child. 70 A.L.R.5th 461.

Right of child to action against mother for infliction of prenatal injuries. 78 A.L.R.4th 1082.

Right of liability insurer or uninsured motorist insurer to invoke defense based on insured’s tort immunity arising out of marital or other close family relationship to injured party. 36 A.L.R.4th 747.

9-1-4. Statute of frauds.

No action shall be brought:

  1. Whereby to charge any person upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer time than one year;
  2. Whereby to charge any person upon any agreement made upon consideration of marriage;
  3. Whereby to charge any trustee under any express trust, or any executor or administrator, upon his or her special promise to answer any debt or damage out of his or her own estate;
  4. Whereby to charge any person upon his or her special promise to answer for the debt, default, or miscarriage of another person;
  5. Whereby to charge any person upon any agreement which is not to be performed within the space of one year from the making thereof;
  6. Whereby to charge any person upon any agreement or promise to pay any commission for or upon the sale of any interest in real estate;
  7. Except in cases to which the Uniform Commercial Code (title 6A) applies, whereby to charge any person upon any contract for the sale of personal property beyond five thousand dollars ($5,000) in an amount or value of remedy, unless the promise or agreement upon which the action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person by him or her thereunto lawfully authorized.

History of Section. C.P.A. 1905, § 226; G.L. 1909, ch. 283, § 6; G.L. 1923, ch. 333, § 6; G.L. 1938, ch. 481, § 1; G.L. 1956, § 9-1-4 ; P.L. 1962, ch. 162, § 1; P.L. 2007, ch. 19, § 1; P.L. 2007, ch. 34, § 1.

Cross References.

Commercial transactions, statutes pertaining to, §§ 6A-1-206 , 6A-2-201 , 6A-8-322.

Conveyances required to be in writing and recorded, § 34-11-1 .

Law Reviews.

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

2006 Survey of Rhode Island Law: Case: Property Law: Haydon v. Stamas, 900 A.2d 1104 (R.I. 2006), see 12 Roger Williams U. L. Rev. 636 (2007).

Comparative Legislation.

Statute of frauds:

Conn. Gen. Stat. § 52-550.

Mass. Ann. Laws ch. 259, § 1 et seq.

NOTES TO DECISIONS

Purpose.

The purpose of the statute of frauds is to guard against perjury by one claiming under an alleged agreement. Smith v. Boyd, 553 A.2d 131, 1989 R.I. LEXIS 3 (1989).

Contracts Not to Be Performed Within a Year.

Where performance was extended by parties beyond a year, and the duration was uncertain, the contract was for an indefinite term, terminable by either party at will and not against the statute of frauds. Powless v. Pawtucket Screw Co., 116 R.I. 158 , 352 A.2d 643, 1976 R.I. LEXIS 1259 (1976).

The fact that an agreement is oral rather than written is not enough, standing alone, to bar its enforcement. Before an agreement may be determined to be unenforceable under this section, it must be established that the contract could not be performed within one year. In re Cable Rhode Island Sports Production, Inc., 37 B.R. 888, 1984 Bankr. LEXIS 6078 (Bankr. D.R.I. 1984).

— Employment Contracts.

An oral employment contract by which it was agreed that the plaintiff would begin work as soon in the future as possible and that the duration of employment would be one year is not enforceable since the contract could not be performed within one year from the time it was made. Sutcliffe v. Atlantic Mills, 13 R.I. 480 , 1882 R.I. LEXIS 23 (1882).

Contract for employment not in writing and not to be performed within one year was within the statute of frauds and unenforceable. Fuller v. Apco Mfg. Co., 51 R.I. 378 , 155 A. 351, 1931 R.I. LEXIS 61 (1931).

Oral contract for one year’s service which called for plaintiff to begin work as soon as possible was unenforceable as being within the statute of frauds, since plaintiff was unable to begin his year’s work until four days after the contract was made and therefore the terms of the contract could not be performed within a one-year period from the date of the making of the contract. Kass v. Ronnie Jewelry, 118 R.I. 100 , 371 A.2d 1060, 1977 R.I. LEXIS 1434 (1977).

An employee-relations director’s allusion to “coming years” in a letter confirming plaintiff ’s employment with the defendant and expressing expectations of a “long and prosperous affiliation” was a sufficient writing to remove the dispute from the bar set forth in subsection (5). Payne v. K-D Mfg. Co., 520 A.2d 569, 1987 R.I. LEXIS 405 (1987).

Draft employment agreement does not satisfy the statute of frauds, where salary and other compensation provisions are left blank. Ferrera v. Carpionato Corp., 895 F.2d 818, 1990 U.S. App. LEXIS 1589 (1st Cir. 1990).

— Performance Possible Within Year.

A parol agreement that the defendant will not carry on a certain trade is not within the statute of frauds since by death of defendant within a year the performance of the contract would be complete. Richardson v. Pierce, 7 R.I. 330 , 1862 R.I. LEXIS 34 (1862); Zanturjian v. Boornazian, 25 R.I. 151 , 55 A. 199, 1903 R.I. LEXIS 34 (1903).

A parol contract which was to continue “as long as the parties are mutually satisfied” is not within the statute of frauds since it might be performed within one year. Greene v. Harris, 9 R.I. 401 , 1870 R.I. LEXIS 3 (1870).

A contract to continue until the plaintiff had made a net profit of $50,000, even if it was necessary to take two years or longer to do it, did not come under the statute, since the money and not the time is the principal object and therefore, it might be performed in a year. Hodges v. Richmond Mfg. Co., 9 R.I. 482 , 1870 R.I. LEXIS 11 (1870).

The statute of frauds does not extend to actions for payment upon contract which are wholly executed on one side within a year. Durfee v. O'Brien, 16 R.I. 213 , 14 A. 857, 1888 R.I. LEXIS 33 (1888).

Part performance of an oral contract not to be performed within a year does not take such a contract out of the statute of frauds. DOUGH v. GIFFORDLINE CHEM. CO., 96 R.I. 223 , 190 A.2d 480, 1963 R.I. LEXIS 74 (1963).

Contract wherein a former employer promised a commission to any employee who made a sale was not subject to the statute of frauds in R.I. Gen. Laws § 9-1-4 ; because the contract contained no duration, it could possibly have been performed within one year. Gupta v. Customerlinx Corp., 385 F. Supp. 2d 157, 2005 U.S. Dist. LEXIS 18782 (D.R.I. 2005).

— Pleadings.

Defendant was not barred from asserting statute of frauds, even though he pleaded only the general issue and did not object to plaintiff’s evidence of the contract, where plaintiff waived part of pleadings based on said contract, and where it was apparent that the defendant intended to insist upon the statute if plaintiff intended to rely on the waived pleadings. Fuller v. Apco Mfg. Co., 51 R.I. 378 , 155 A. 351, 1931 R.I. LEXIS 61 (1931).

When a bill alleges an agreement that is susceptible of being within the bar of the statute of frauds but does not disclose by way of allegation whether it was in writing or not, the question as to the effect of the statute thereon cannot be raised by demurrer. Politelli v. Gianfrancesco, 98 R.I. 252 , 201 A.2d 129, 1964 R.I. LEXIS 157 (1964).

Tenants waived the statute-of-frauds defense where, although they stated that the lease was void ab initio, they failed to state with specificity the reasons supporting their assertion. Grant v. Briskin, 603 A.2d 324, 1992 R.I. LEXIS 36 (1992).

— Sufficiency of Memorandum.

Letter which stated that three year contract of employment as a finisher was “for so much of such three years as your results show the ability that you now claim to be able to give me” was not a sufficient memorandum, since there was no definite standard without resorting to oral testimony. Wagniere v. Dunnell, 29 R.I. 580 , 73 A. 309, 1909 R.I. LEXIS 60 (1909).

The written memorandum should not only be signed by the party sought to be charged but also should show the other party to the contract by name or description. Di Santis v. Cannata, 42 R.I. 118 , 105 A. 561, 1919 R.I. LEXIS 9 (1919).

Defenses.

Defendant may be equitably estopped from setting up the statute as a defense where to do so will prevent breach of trust, fraud and circuity of action. James R. Hodges & Co. v. Howard, 5 R.I. 149 (1858).

Marriage as Consideration for Agreement.
— Defenses.

The statute of frauds is no defense if the promisor fraudulently induced the marriage with no intention from the outset of performing his promise, or if the marriage is not the real end or purpose of the agreement but a mere incident or condition thereof. Hutnak v. Hutnak, 78 R.I. 231 , 81 A.2d 278, 1951 R.I. LEXIS 63 (1951).

— Force and Effect of Requirement.

The requirement that agreements upon consideration of marriage be in writing to be enforceable is generally given full force and effect where, despite other inducements, marriage is in whole or in part the real consideration for the agreement. Hutnak v. Hutnak, 78 R.I. 231 , 81 A.2d 278, 1951 R.I. LEXIS 63 (1951).

— Part Performance.

The doctrine of part performance is not applicable to contracts in consideration of marriage, but in rare instances equitable estoppel may be applied on similar facts. Hutnak v. Hutnak, 78 R.I. 231 , 81 A.2d 278, 1951 R.I. LEXIS 63 (1951).

Marriage was not sufficient part performance to take oral promise out of the statute of frauds, since part performance was not exclusively referable to oral contract. Matarese v. Matarese, 82 R.I. 10 , 105 A.2d 475, 1954 R.I. LEXIS 3 (1954).

— Pleadings.

Question of enforceability of antenuptial agreement raised by complainant in brief and oral argument on appeal by respondents was not properly before supreme court. Cole v. Cole, 67 R.I. 168 , 21 A.2d 248, 1941 R.I. LEXIS 83 (1941).

Origin and History of Section.

The seventh section of the statute of 29 Car. 2, cap. 3, known as the statute of frauds and perjuries, while never expressly reenacted, was recognized as a part of the law of this state, and is one of the statutes which were declared to be in force in this state by the Act of 1749. Taft v. Dimond, 16 R.I. 584 , 18 A. 183, 1889 R.I. LEXIS 64 (1889).

Promise to Answer for Debt, Default or Miscarriage of Another.

The agreement of an officer of a family corporation that purchases by the corporation should be billed to him personally and that he would be responsible for their payment was that of a debtor and not that of a guarantor and was not governed by the fourth specification of this section. B. A. Buonanno, Inc. v. Pezzillo, 107 R.I. 695 , 270 A.2d 912, 1970 R.I. LEXIS 827 (1970).

— Agreement to Purchase Debt.

An oral promise to pay the debts of other persons in consideration that the creditor assign his claims to the promisor was not within the statute of frauds, as it was a promise to buy debts and not to pay them. Stillman v. Dresser, 22 R.I. 389 , 48 A. 1, 1901 R.I. LEXIS 14 (1901).

— Evidence.

Oral promise by mother to be personally liable for materials furnished to daughter was admissible where other evidence sustained finding that mother recognized debt as her own and that credit was given to her. Burrillville Lumber Co. v. Rawson, 68 R.I. 1 , 26 A.2d 10, 1942 R.I. LEXIS 27 (1942).

— Promise Made to Debtor.

An agreement to answer to the debt of another is not within this statute if the agreement is with the debtor. Wood v. Moriarty, 15 R.I. 518 , 9 A. 427, 1887 R.I. LEXIS 32 (1887); Autran v. Cass, 51 R.I. 198 , 153 A. 246, 1931 R.I. LEXIS 8 (1931).

— Reliance on Promise.

The alleged promise declared on was not as a matter of law within the provisions of the statute of frauds, where defendant promised he would fix things up for the plaintiff and that if plaintiff would release an injunction against the sale of real estate, defendant would pay the plaintiff an amount due him when the property was sold. Menzoian v. Johnson, 57 R.I. 196 , 189 A. 410, 1937 R.I. LEXIS 94 (1937).

Real Estate Broker’s Commission.

Real estate broker is not entitled to recover value of services and expenses in securing a purchaser for real estate where he did not obtain an agreement in writing or memorandum. Heyman v. Adeack Realty Co., 102 R.I. 105 , 228 A.2d 578, 1967 R.I. LEXIS 653 (1967).

This section is not applicable to a case where plaintiff agreed to pay defendant commission for services in bringing plaintiff together with the owner of several parcels of real estate which plaintiff ultimately purchased without defendant becoming involved in the negotiations. Fishbein v. Zexter, 107 R.I. 672 , 270 A.2d 510, 1970 R.I. LEXIS 823 (1970).

Where defendant’s president and treasurer admitted on witness stand that he employed plaintiff to procure a buyer for defendant’s property, that he agreed to pay a commission and that he acknowledged that the rate of commission was ten per cent of selling price plaintiff was entitled to recover a commission although alleged agreement to pay a real estate broker’s commission for procuring a purchaser for its realty was not reduced to writing as required by the section. Peacock Realty Co. v. E. Thomas Crandall Farm, 108 R.I. 593 , 278 A.2d 405, 1971 R.I. LEXIS 1312 (1971).

The purpose of the sixth clause of the statute of frauds is to protect the public against the unfounded claims of a specific class of persons, namely, real estate brokers and agents. Weiss v. G. L. & H. J. Gross, Inc., 119 R.I. 600 , 382 A.2d 170, 1979 R.I. LEXIS 1811 (1979).

The sixth clause of this section does not apply to employment contracts between real estate brokers and agents and their employees. Weiss v. G. L. & H. J. Gross, Inc., 119 R.I. 600 , 382 A.2d 170, 1979 R.I. LEXIS 1811 (1979).

The compensation due from a real estate broker to his salesman-employee is not a commission within the contemplation of the sixth clause of this statute. Weiss v. G. L. & H. J. Gross, Inc., 119 R.I. 600 , 382 A.2d 170, 1979 R.I. LEXIS 1811 (1979).

In action for commission for sale of real estate letter written by defendant was not sufficient to constitute a signed memorandum, although defendant stated it was in answer to plaintiff’s previous phone calls and letters, where the letter did not set out the terms of the contract and contained nothing to indicate that the defendant accepted the terms of the previous phone calls and letters. Kates Corp. v. Kirshenbaum, 122 R.I. 486 , 409 A.2d 540, 1979 R.I. LEXIS 1566 (1979).

Where a brokerage owner attempted to find a buyer for real estate and met with the eventual buyer, the brokerage owner was not entitled to a real estate commission for the sale of the property as the claim was barred under the statute of frauds, R.I. Gen. Laws § 9-1-4(6) ; no written agreement existed between the parties and there was no oral agreement. United States v. Moneta Capital Corp., 441 F. Supp. 2d 398, 2006 U.S. Dist. LEXIS 54461 (D.R.I. 2006).

Because a purported contract for real estate commissions arising from the sale of certain property was not in writing, the statute of frauds, R.I. Gen. Laws § 9-4-1(6), precluded enforcement of that contract, regardless of whether the claim was grounded in contract, quantum meruit, or promissory estoppel. Brochu v. Santis, 939 A.2d 449, 2008 R.I. LEXIS 8 (2008).

— Estoppel.

To apply the doctrine of promissory estoppel to real estate brokerage agreements so as to take them out of the statute would, in the absence of fraud, defeat the very purpose for which subdivision (6) was enacted, specifically, protection against unfounded claims. Heyman v. Adeack Realty Co., 102 R.I. 105 , 228 A.2d 578, 1967 R.I. LEXIS 653 (1967).

Real Estate Contracts and Leases.

Sale of a nursing home which was in the process of construction, the price for which was negotiated on a per bed basis and which required the seller to obtain all licensing necessary for its operation was essentially the sale of a business rather than the sale of real estate within subdivision (6) of this section. Bottomley v. Coffin, 121 R.I. 399 , 399 A.2d 485, 1979 R.I. LEXIS 1789 (1979).

Defaulting purchasers of a house could not rely upon alleged unwritten assurances concerning an early move-in date to excuse their non-performance, since the statute of frauds requires all agreements involving the sale of land must be in writing to be enforceable. Riley v. St. Germain, 723 A.2d 1120, 1999 R.I. LEXIS 16 (1999).

Trial court did not err by finding that communications which the buyer and seller’s attorney exchanged by e-mail did not form a contract between the parties. 731 Airport Assocs., LP v. H & M Realty Assocs., LLC, 799 A.2d 279, 2002 R.I. LEXIS 165 (2002).

— Applicability.

The statute of frauds does not apply to cases where the legal title to an estate is procured by means of actual or constructive fraud. Jenckes v. Cook, 9 R.I. 520 , 1870 R.I. LEXIS 18 (1870).

To create an enforceable contract for the sale of realty, the contract must be in writing, or otherwise satisfy the writing requirement under this section. Smith v. Boyd, 553 A.2d 131, 1989 R.I. LEXIS 3 (1989).

Since the oral partnership agreement between a father and his children sharing the proceeds of the sale of real property mingled a term subject to the statute of frauds with terms that were not subject to it, the entire agreement was subject to the statute of frauds and was unenforceable. Filippi v. Filippi, 818 A.2d 608, 2003 R.I. LEXIS 40 (2003).

In determining the applicability of R.I. Gen. Laws § 9-1-4(6) , it is the nature of the underlying transaction that is determinative—not whether the person attempting to enforce the agreement is a finder or a broker. Mut. Dev. Corp. v. Ward Fisher & Co., LLP, 47 A.3d 319, 2012 R.I. LEXIS 125 (2012).

R.I. Gen. Laws § 9-1-4(6) does not draw a distinction between a broker and a finder; any person or entity seeking a commission upon the sale of any interest in real estate must have evidence of that agreement in writing, signed by the party to be charged or by some other lawfully authorized person. Mut. Dev. Corp. v. Ward Fisher & Co., LLP, 47 A.3d 319, 2012 R.I. LEXIS 125 (2012).

Term “commission” as used in R.I. Gen. Laws § 9-1-4(6) encompasses any type of payment, whether it be a flat-sum commission or a percentage-based commission. Mut. Dev. Corp. v. Ward Fisher & Co., LLP, 47 A.3d 319, 2012 R.I. LEXIS 125 (2012).

Plaintiff’s claim that defendants owed it a finder’s fee because it found a building for them did not survive summary judgment, as there was no written agreement to that effect, and R.I. Gen. Laws § 9-1-4(6) , barring oral agreements for the payment of real estate commissions, also applied to a flat-sum finder’s fee. Mut. Dev. Corp. v. Ward Fisher & Co., LLP, 47 A.3d 319, 2012 R.I. LEXIS 125 (2012).

— Agents and Brokers — Authority.

This section bars an action on a verbal agreement that the defendant, acting as the plaintiff’s agent, would purchase certain land, take title in his own name and later convey it to the plaintiff when he was ready to pay for the land. Spencer v. Lawton, 14 R.I. 494 , 1884 R.I. LEXIS 34 (1884).

The agent signing the required memorandum must be authorized in writing, otherwise a person might be charged on such conveyance without having signed any writing. Bourne v. Campbell, 21 R.I. 490 , 44 A. 806, 1899 R.I. LEXIS 113 (1899).

Oral agreement to purchase real estate at mortgage foreclosure sale as agent and convey to the principal was a contract for the sale of land or creation of an interest or trust in land within the statute of frauds. Bowen v. Sayles, 23 R.I. 34 , 49 A. 103, 1901 R.I. LEXIS 84 (1901).

Checks payable to the husband did not show that the husband and wife were parties to any contract in the absence of evidence that husband was his wife’s “lawfully authorized” agent to sell her property. Di Santis v. Cannata, 42 R.I. 118 , 105 A. 561, 1919 R.I. LEXIS 9 (1919).

The statute of frauds does not require that the agent signing note or memorandum act under written authority, and such authorization may be by parol. Sholovitz v. Noorigian, 42 R.I. 282 , 107 A. 94, 1919 R.I. LEXIS 34 (1919); Preble v. Higgins, 43 R.I. 10 , 109 A. 707, 1920 R.I. LEXIS 25 (1920).

It is not necessary that the memorandum disclose the name of the owner if it is signed by some other person by him thereunto lawfully authorized. Preble v. Higgins, 43 R.I. 10 , 109 A. 707, 1920 R.I. LEXIS 25 (1920).

The authority conferred upon an agent to make a contract for the sale of real estate confers authority to sign a written note or memorandum which renders such contract effective and binding. Daignault v. Wooliscroft, 43 R.I. 482 , 113 A. 749, 1921 R.I. LEXIS 21 (1921).

— Boundaries.

A parol agreement between adjoining landowners establishing a boundary line which was uncertain or disputed is not within the statute of frauds since such an agreement is not regarded as passing any real estate. O'Donnell v. Penney, 17 R.I. 164 , 20 A. 305, 1890 R.I. LEXIS 65 (1890).

— Defenses.

In action to enforce oral contract to hold or sell certain lots on recorded plat subject to restrictions, respondent was not estopped to set up statute of frauds, where the land never became restricted by reason of any scheme to restrict and a much larger number of lots had been conveyed free from restrictions than had been conveyed subject to restrictions. Ham v. Massasoit Real Estate Co., 42 R.I. 293 , 107 A. 205, 1919 R.I. LEXIS 39 (1919).

Where a respondent acted and intended to act in such a manner as to lead complainant to believe that he would transfer a certain contract for the purchase of land and complainant relying on such acts substantially performed the acts and things to be done by him, the statute of frauds may not be asserted as a defense in an action for specific performance. Tingley v. Jacques, 43 R.I. 367 , 112 A. 781, 1921 R.I. LEXIS 86 (1921).

The case of Carroll v. Ryder, 34 R.I. 383 , 83 A. 845 (1912), does not reverse or modify the holding in Macomber v. Peckham, infra, that parol evidence is not admissible to secure a reformation and enforcement of the contract to include more land, as there was part performance in the Carroll case. Conti v. Fisher, 48 R.I. 33 , 134 A. 849, 1926 R.I. LEXIS 9 (1926).

— Easements.

An easement is a hereditament and an interest in land capable of creation or transfer only by operation of law, or by grant or prescription. Ham v. Massasoit Real Estate Co., 42 R.I. 293 , 107 A. 205, 1919 R.I. LEXIS 39 (1919).

The defendant’s statement on the stand that “the proposal of the plaintiff was an arrangement the defendant agreed to go forward with” was insufficient to remedy the lack of any written statement specifying the subject matter or consideration of the alleged contract. The defendant’s admission that under the plaintiff’s proposal the plaintiff was to “construct a ‘road’ and ‘bring in utilities’ at its cost” in return for an easement lacks sufficient specificity to establish the elements of the contract, particularly in this instance in which the defendant specifically required participation in formulating the details of a forthcoming agreement. Rhode Island Five v. Medical Assocs., 668 A.2d 1250, 1996 R.I. LEXIS 2 (1996).

— Effect of Agreement Prior to Execution.

The fact that the terms of a proposed sale are agreed to does not necessarily mean that the would-be vendors intend to be bound by such agreed-upon terms before they executed the written document, where there is much evidence that they do not intend to contract before signing a written purchase-and-sales-agreement form. Smith v. Boyd, 553 A.2d 131, 1989 R.I. LEXIS 3 (1989).

When the parties to an agreement understand that the agreement is to be reduced to writing, and extensive preparation or performance has not begun, the burden of proof to show an objective intent to be bound before execution of the written contract is on that party who wishes to enforce the alleged oral contract. Smith v. Boyd, 553 A.2d 131, 1989 R.I. LEXIS 3 (1989).

— Evidence.

Parol evidence is not admissible to show an extension of time to complete a cottage where the contract is for the sale of land and the cottage located thereon, since the contract is not divisible and is within the statute of frauds. Ladd v. King, 1 R.I. 224 , 1 R.I. 225 , 1849 R.I. LEXIS 2 (1849).

Testimony was admitted to prove plaintiff was overcharged by defendant on an oral contract for the purchase of land on the theory that action was brought not on the contract but on the promise of defendant to refund part of the purchase price to plaintiff, the contract merely being evidence to show liability outside of the contract. Arnold v. Garst, 16 R.I. 4 , 11 A. 167, 1887 R.I. LEXIS 66 (1887).

Oral testimony will not be allowed to enlarge the scope of a written contract even if as the result of mutual mistake the written contract failed to contain a description of all of the property that seller orally had agreed to sell and buyer to purchase. Macomber v. Peckham, 16 R.I. 485 , 17 A. 910, 1889 R.I. LEXIS 40 (1889).

Checks signed by defendant and payable to plaintiffs could not, by parol evidence, be read together with a memorandum in order to identify plaintiffs as vendors of land therein, where such memorandum did not refer to any checks or to any other writing. Di Santis v. Cannata, 42 R.I. 118 , 105 A. 561, 1919 R.I. LEXIS 9 (1919).

Oral promise of decedent to deed property as a home for plaintiff and to support plaintiff for life was within the statute, justifying striking of testimony of oral promise as incompetent, since plaintiff’s pleadings designated promise as indivisible. Kinden v. Foster, 60 R.I. 41 , 197 A. 100, 1938 R.I. LEXIS 102 (1938).

When the statute of frauds is pleaded as a defense, the evidence of the complainant must not only be convincing but must show that the performance relied upon to take case out of the statute was referable exclusively to the contract. Lambert v. Lambert, 82 R.I. 166 , 106 A.2d 729, 1954 R.I. LEXIS 27 (1954).

A conveyance date for the sale of real estate that would have been capable of proof by parol, if not included in the initial written contract, is also suspectible of modification by oral agreement in accordance with principles generally applicable to written contracts. Berube v. Montgomery, 463 A.2d 158, 1983 R.I. LEXIS 1018 (1983).

— “Lands” Construed.

An interest in a cemetery lot, whether a fee simple or an easement, would be included in the word “lands” in the statute of frauds. Oakland Cemetery Co. v. Smith, 54 R.I. 136 , 170 A. 492, 1934 R.I. LEXIS 22 (1934).

— Leases.

A memorandum of a contract for a lease must state the term for which the lease is granted. James R. Hodges & Co. v. Howard, 5 R.I. 149 (1858).

An implied contract or a contract raised by law from the nature of the transaction is not within the statute of frauds, so that a lessee is required to pay rent when he has entered into possession of the leased premises, even though the instrument granting him the real estate with rent reserved was executed only by the lessor. Providence Christian Union v. Eliott, 13 R.I. 74 , 1880 R.I. LEXIS 43 (1880).

Contracts for the assignment of leasehold interests are within the statute of frauds, so that an oral contract which was entire and contained an agreement to assign a leasehold interest could not be enforced. Potter v. Arnold, 15 R.I. 350 , 5 A. 379, 1886 R.I. LEXIS 35 (1886).

The vote of the town council signed by the town clerk to lease a bathing beach was a sufficient memorandum to comply with the statute. Marden v. Champlin, 17 R.I. 423 , 22 A. 938, 1891 R.I. LEXIS 39 (1891).

A lease for longer than one year signed by the plaintiff’s son “acting on behalf of” the plaintiff was not valid in the absence of evidence that he was ever authorized in writing by the plaintiff to sign such lease, and subsequent ratification did not bind plaintiff. Bourne v. Campbell, 21 R.I. 490 , 44 A. 806, 1899 R.I. LEXIS 113 (1899).

A lease for one year does not need to be in writing and a refusal by a tenant to sign a written lease or his erasure of his signature does not affect the oral agreement between the parties. Czech v. Zuromski, 83 R.I. 129 , 117 A.2d 431, 1955 R.I. LEXIS 73 (1955).

Lessee’s memorandum containing details of an oral agreement reached between its agent and lessor on a five-year lease renewal, but signed on only one of four lines marked “Approve,” did not indicate lessee’s final approval of the renewal, and the oral agreement was therefore unenforceable under this section. Centredale Inv. Co. v. Prudential Ins. Co., 540 F.2d 16, 1976 U.S. App. LEXIS 7620 (1st Cir. 1976).

Although it may be that an unnatural or unreasonable failure to reply to a letter referring to an oral agreement acts as corroboration of that agreement, where the circumstances surrounding lessee’s failure to answer such a letter from lessor were ambiguous, no such corroboration could be inferred. Centredale Inv. Co. v. Prudential Ins. Co., 540 F.2d 16, 1976 U.S. App. LEXIS 7620 (1st Cir. 1976).

In-court testimony by lessee’s agent that he concluded a conditional oral agreement with lessor for a five-year lease renewal was not sufficient to bind lessee as if that agreement had been unconditional. Centredale Inv. Co. v. Prudential Ins. Co., 540 F.2d 16, 1976 U.S. App. LEXIS 7620 (1st Cir. 1976).

The words “any interest in real estate,” as used in the sixth paragraph of this section, include leases and an oral agreement to pay a commission for procuring a lease of real estate for a fixed term of years is unenforceable under this section. Zexter v. Cerrone, 107 R.I. 92 , 265 A.2d 328, 1970 R.I. LEXIS 743 (1970).

— Mortgages.

The defendant, by accepting an estate conveyed subject to specified mortgages, impliedly assumes to pay the mortgages as a part of the consideration, and such implied contract does not fall within the statute of frauds. Urquhart v. Brayton, 12 R.I. 169 , 1878 R.I. LEXIS 54 (1878).

Statute of frauds prevented enforcement of oral contract between furnishers of material without any fiduciary relationship, to bid independently on foreclosure of mortgages on individual properties to which materials had been added. State Lumber Co. v. Cuddigan, 51 R.I. 69 , 150 A. 760, 1930 R.I. LEXIS 46 (1930).

An agreement to pay mortgages on the realty of one party, the other party to receive an equal share in the property for his efforts, is within the statute of frauds. Chase v. Chase, 78 R.I. 278 , 81 A.2d 686, 1951 R.I. LEXIS 71 (1951).

A promised assignment of a mortgage or of its proceeds to a third party is not an “interest in land” subject to the statute of frauds. CLIC & Co. v. Goldfarb, 838 F.2d 32, 1988 U.S. App. LEXIS 1445 (1st Cir. 1988).

— Nonperformance of Oral Contract.

The nonperformance of an oral agreement to hold or sell certain lots subject to restrictions did not constitute fraud in the absence of a relation of trust and confidence between the parties. Ham v. Massasoit Real Estate Co., 42 R.I. 293 , 107 A. 205, 1919 R.I. LEXIS 39 (1919).

Trial court erred in striking an order of lis pendens filed by option holders as to disputed property, because an oral modification of the option agreement did not violate the terms of the statute of frauds, R.I. Gen. Laws § 9-1-4 , and thus the time to exercise the option was extended by the property owner. Haydon v. Stamas, 900 A.2d 1104, 2006 R.I. LEXIS 115 (2006).

— Part Performance.

A parol agreement to lease land will not be taken out of the statute by part performance unless the entering into possession, payment of money or making of improvements are actually done on the faith of the contract and in pursuance thereof, and the court will require stringent proof before it will enforce the specific performance of such a parol agreement. Peckham v. Barker, 8 R.I. 17 , 1864 R.I. LEXIS 3 (1864).

The doctrine of part performance did not apply to an action to enforce oral agreement to hold certain land subject to restrictions which constituted a negative easement in such land. Ham v. Massasoit Real Estate Co., 42 R.I. 293 , 107 A. 205, 1919 R.I. LEXIS 39 (1919).

Where owner of real estate sold a tract with a house and barn located thereon to complainant and three months later sold an adjoining tract to another, complainant occupied the premises sold to him, and barn was located on disputed six-foot line, the complainant was entitled to reformation of deeds even though written receipts for deposits given at the time the deeds were lost, since there was partial performance sufficient to take case out of statute of frauds as complainant had occupied and had exclusive possession of disputed six-foot strip. Conti v. Fisher, 48 R.I. 33 , 134 A. 849, 1926 R.I. LEXIS 9 (1926).

Part payment of the purchase price, or making improvements severally might not be sufficient to remove a case from application of the statute of frauds, yet a combination of all was. Najarian v. Boyajian, 48 R.I. 213 , 136 A. 767, 1927 R.I. LEXIS 45 (1927).

The full payment of the purchase price is not enough in itself to take the contract out of the statute of frauds. Corrado v. Montuori, 49 R.I. 78 , 139 A. 791, 1928 R.I. LEXIS 9 (1928).

Statute of frauds would not bar suit on oral contract for conveyance of land where grantees quit jobs, moved to grantor’s house to support and care for him without income, and substantially improved the property. Johnson v. Johnson, 51 R.I. 296 , 154 A. 214, 1931 R.I. LEXIS 36 (1931).

Vendor of cemetery lot under oral contract could not recover money due, even though purchaser had buried husband and made some payments, since payment in whole or in part and possession are equitable doctrines not available in a law action. Oakland Cemetery Co. v. Smith, 54 R.I. 136 , 170 A. 492, 1934 R.I. LEXIS 22 (1934).

Alleged oral agreement between husband and wife to execute mutual wills concerning real estate was within the statute of frauds where only action alleged to take agreement out of statute was making of improvements not shown to be in reliance on the agreement or for benefit of others than improver. Tillinghast v. Harrop, 63 R.I. 394 , 9 A.2d 28, 1939 R.I. LEXIS 107 (1939).

If one party to an oral agreement for the transfer to such party of an interest in real estate has in reliance upon the agreement performed his part so that he will be greatly and unjustly damaged if the other party does not perform, equity may compel performance. Tillinghast v. Harrop, 63 R.I. 394 , 9 A.2d 28, 1939 R.I. LEXIS 107 (1939).

Where son promised father that he would pay him a weekly sum and take care of him in consideration of promise by father to devise the family home to son, and son thereafter for a period of 14 years occupied family home, repaired, improved and managed the property and also took care of his father, such acts were performed exclusively with reference to oral agreement and took it out of the statute of frauds. Baumgartner v. Seidel, 75 R.I. 243 , 65 A.2d 697, 1949 R.I. LEXIS 36 (1949).

Oral agreement for a lease of certain premises, unenforceable under this section, was nevertheless enforceable under the doctrine of part performance where evidence was clear and convincing. Star Dinette & Appliance Co. v. Savran, 104 R.I. 665 , 248 A.2d 69, 1968 R.I. LEXIS 703 (1968).

Where plaintiff seeks a real estate brokerage commission on an alleged contract which was not reduced to writing, the claim of quantum meruit and part performance cannot be used to circumvent the requirement of this section. Wright v. Smith, 105 R.I. 1 , 249 A.2d 56, 1969 R.I. LEXIS 711 (1969).

Taking possession of property pursuant to an oral contract, together with making improvements or paying a substantial part of the purchase price, is generally sufficient to avoid the bar of the statute of frauds. Pearl Brewing Co. v. McNaboe, 495 A.2d 238, 1985 R.I. LEXIS 547 (1985).

Where the terms of the agreement are clear and the possession or improvements in reliance thereon are substantial and clearly shown, the court will disregard the requirement of a writing and enforce an oral agreement for the sale of an interest in real estate. R.W.P. Concessions v. Rhode Island Zoological Soc'y, 487 A.2d 129, 1985 R.I. LEXIS 434 (1985).

Where capital improvements are readily removed and obligations due under the contract have not been satisfied, the reliance necessary to invoke the doctrine of part performance has not been established. R.W.P. Concessions v. Rhode Island Zoological Soc'y, 487 A.2d 129, 1985 R.I. LEXIS 434 (1985).

Although a son and daughter-in-law initially took possession of a father’s property as renters, their continued possession after the father allegedly made an oral agreement to sell them the property for $70,000 was sufficient to show possession for purposes of constituting the part performance exception to the statute of frauds, R.I. Gen. Laws § 9-1-4 because a change in the nature of their possession was shown by the father’s entries in ledgers, beginning at the time the oral contract was allegedly made, that reflected weekly payments made by the son and daughter-in-law and deducted from a figure of $70,000. Richard v. Richard, 900 A.2d 1170, 2006 R.I. LEXIS 126 (2006).

Improvements such as landscaping, retiling, and the completion of a sun porch made to a property by a son and daughter-in-law after the father allegedly made an oral agreement to sell them the property for $70,000 were sufficiently substantial to indicate the existence of an enforceable agreement under the part performance exception to the statute of frauds, R.I. Gen. Laws § 9-1-4 ; because the improvements were not easily removable, they would have been improvident if made in the absence of an enforceable agreement. Richard v. Richard, 900 A.2d 1170, 2006 R.I. LEXIS 126 (2006).

A father’s oral contract to sell property to his son and former daughter-in-law for a purchase price of $70,000 was enforceable; taken together, their weekly payments to the father, which he recorded in ledgers and deducted from a figure of $70,000, the substantial improvements they made to the property, and their continued possession of the property were sufficient to constitute the part performance exception to the statute of frauds, R.I. Gen. Laws § 9-1-4 . Richard v. Richard, 900 A.2d 1170, 2006 R.I. LEXIS 126 (2006).

— Recovery of Payments.

An oral contract for sale of land is not utterly void and one who advanced money on such contract could recover it where the other party was unable or unwilling to perform. Miller v. Healey, 39 R.I. 339 , 97 A. 796, 1916 R.I. LEXIS 32 (1916).

— Restrictions on Use.

Oral agreement by owner to hold or sell certain lots on recorded plat subject to the same restrictions as contained in deed to complainant was within statute. Ham v. Massasoit Real Estate Co., 42 R.I. 293 , 107 A. 205, 1919 R.I. LEXIS 39 (1919).

— Sufficiency of Complaint.

Bankruptcy debtor’s complaint alleging that a bank agreed not to call a demand note until the completion and sale of a condominium project is dismissed, where the complaint does not set forth a specific time period within which the alleged oral agreement was to be performed. Rhode Island Hosp. Trust Nat'l Bank v. Bogosian (In re Belmont Realty Corp.), 116 B.R. 21, 1990 Bankr. LEXIS 2162 (Bankr. D.R.I. 1990).

— Sufficiency of Description.

A writing which referred to land as “that lot” was not a description of the land and, therefore, was an insufficient memorandum. Ray v. Card, 21 R.I. 362 , 43 A. 846, 1899 R.I. LEXIS 74 (1899).

Memorandum stating “I have sold this place * * *” was an insufficient memorandum, since it did not describe any property, and deed, which described property, could not be introduced into evidence to aid the memorandum. Cunha v. Gallery, 29 R.I. 230 , 69 A. 1001 (1908).

A deed evidencing ownership of land and the boundaries of entire tract was admissible to identify property described in memorandum of contract for sale of a portion thereof. Sholovitz v. Noorigian, 42 R.I. 282 , 107 A. 94, 1919 R.I. LEXIS 34 (1919).

A description of land in memorandum as “brick store and land at 46 Blackstone St.” was not insufficient because width and depth of the lot were not set out, where the small amount of land adjoining brick store building was well defined and set off by monuments. Sholovitz v. Noorigian, 42 R.I. 282 , 107 A. 94, 1919 R.I. LEXIS 34 (1919).

A description of land as “Harry Noorigian brick store and land at 46 Blackstone Street” was a definite description of a particular brick store and the land on which it stood, where the owner was known by that name, such name admittedly referred to the defendant, both parties resided where the memorandum was made, and the defendant owned property on Blackstone Street in the same city. Sholovitz v. Noorigian, 42 R.I. 282 , 107 A. 94, 1919 R.I. LEXIS 34 (1919).

Description of property and purchase price receipt as “Pawtucket Ave. East Prov.” will be sufficient to meet the requirements of the statute of frauds since the description could apply to but one parcel of property held by the seller, and thereafter the property could be identified by parol. The description would have been insufficient if it had applied equally well to more than one parcel of property owned by the seller. Preble v. Higgins, 43 R.I. 10 , 109 A. 707, 1920 R.I. LEXIS 25 (1920).

Under the statute of frauds the words “the holdings I have sold” is such an indefinite and incomplete description as to furnish no description, and parol evidence is not admissible to furnish a description. Calci v. Caianillo, 46 R.I. 305 , 127 A. 361, 1925 R.I. LEXIS 6 (1925).

A description of land may be made certain by parol evidence where the description can be shown to apply to but one parcel of land owned by the seller. Corrado v. Montuori, 49 R.I. 78 , 139 A. 791, 1928 R.I. LEXIS 9 (1928).

— Sufficiency of Memorandum.

A check for earnest money with a notation on the back that it was a deposit toward the purchase of identified real estate for $100,000, a receipt for the same signed by the agent of the owner, proposed sales agreements submitted to intended purchasers, and a cover note to purchasers’ attorney signed by the agent of the owner and attached to the sales agreement constituted a sufficient memorandum of the transaction to take it out of the statute of frauds. Leach v. Crucible Center Co., 388 F.2d 176, 1968 U.S. App. LEXIS 8321 (1st Cir. 1968).

It is not necessary that a note or memorandum relating to the sale of realty be signed by both parties in order to bring an action, since the statute requires only that it be signed “by the party to be charged therewith.” Ives v. Hazard, 4 R.I. 14 , 1855 R.I. LEXIS 40 (1855).

In order to bring an action on a contract for the sale of realty the note or memorandum need not contain all the details of the agreement but it is sufficient if it contains the substance of the agreement. Ives v. Hazard, 4 R.I. 14 , 1855 R.I. LEXIS 40 (1855).

A memorandum was sufficient where it gave the terms of a complete contract, was signed by both parties, acknowledged receipt of money “on account of above sale,” and contained the language “I hereby agree to sell.” Thornton v. Kelly, 11 R.I. 498 , 1877 R.I. LEXIS 29 (1877).

A memorandum signed and delivered by the auctioneer the day following the auction sale of real estate will be a sufficient memorandum in view of the scope and duration of the agency continuing beyond the day of the actual auction. Sweeney v. Brow, 35 R.I. 227 , 86 A. 115, 1913 R.I. LEXIS 18 (1913).

A paper reciting that a sum of money was received from the defendant for the sale of a house, and signed by the defendant, was not a sufficient memorandum where neither the names nor a description of the vendors appeared therein, and such paper referred to no other writing by which they could be ascertained. Di Santis v. Cannata, 42 R.I. 118 , 105 A. 561, 1919 R.I. LEXIS 9 (1919).

A writing which recited that the owner’s agent had received from plaintiff a sum of money “to bind the bargain for the sale” of land to plaintiff expressed an agreement by the owner to convey the land, as the expression “bargain for the sale” imports an agreement on the part of both parties. Sholovitz v. Noorigian, 42 R.I. 282 , 107 A. 94, 1919 R.I. LEXIS 34 (1919).

The statute does not require the agreement to sell land to be written, provided there is a note or memorandum of the agreement sufficient to meet the requirements. Preble v. Higgins, 43 R.I. 10 , 109 A. 707, 1920 R.I. LEXIS 25 (1920).

It is not necessary that the memorandum to satisfy the statute of frauds show the owner as parol evidence may be adduced to show the agency of the person signing for the owner. Preble v. Higgins, 43 R.I. 10 , 109 A. 707, 1920 R.I. LEXIS 25 (1920).

An agreement reciting “Received of Capwell $100 on account of homestead farm situated on both sides of Quidnick Pond Road, so-called. Purchase price to be $1250. Balance to be paid within 60 days from above date or when deed is passed” constituted a sufficient memorandum. Capwell v. Spencer, 48 R.I. 401 , 137 A. 699, 1927 R.I. LEXIS 64 (1927).

A memorandum to comply with the statute of frauds need contain only the substance of the contract or agreement and not a statement of all particulars. Durepo v. May, 73 R.I. 71 , 54 A.2d 15, 1947 R.I. LEXIS 64 (1947).

The agreement for the sale of land does not have to be in writing provided there is a note of memorandum of the agreement sufficient to meet the requirements of the statute. Cuddigan v. List, 93 R.I. 505 , 177 A.2d 195, 1962 R.I. LEXIS 16 (1962).

Where after complainant gave realtor a check, the realtor gave him a receipt and the key to the house telling him that the property was his, it was held a binding agreement had been completed between the parties at that time even though such receipt contained words that the deposit was “accepted subject to the approval of seller — and buyer — to conditions contained in an agreement of sale to be submitted by —” in view of the fact that the receipt contained all of the conditions which are usually included in an agreement of sale. Cuddigan v. List, 93 R.I. 505 , 177 A.2d 195, 1962 R.I. LEXIS 16 (1962).

Instead of manifesting the existence of a contract between the parties, as the plaintiffs contended, correspondence indicating that the defendants did not intend to be bound prior to the execution of a formal contract at some future date did not satisfy the statute of frauds. UXB Sand & Gravel v. Rosenfeld Concrete Corp., 641 A.2d 75, 1994 R.I. LEXIS 140 (1994).

The promise that the plaintiff seeks to enforce is not a lease but the defendants’ promise by their agent that they would negotiate and execute a lease with terms not materially less favorable to the plaintiff than those of the prior, expired lease. This promise is memorialized in the agent’s letter to the plaintiff. Therefore, the promise the plaintiff seeks to enforce is within the requirements of the statute of frauds. De Bourgknecht v. Cianci, 846 F. Supp. 1057, 1994 U.S. Dist. LEXIS 3532 (D.R.I. 1994).

The letter contained all the essential elements necessary to constitute a contract; it identified the parties, contained the price, recited the rental terms, fees, and taxes, specified the property, and was signed by the authorized agent; the fact that the letter referred to the drafting of a more formal written agreement did not serve to negate the present existence of a valid agreement. Greensleeves, Inc. v. Smiley, 694 A.2d 714, 1997 R.I. LEXIS 184 (1997).

Where a document executed by the parties satisfied the statute of frauds, R.I. Gen. Laws § 9-1-4(1) , provided the terms of the sale agreement, and the buyer was ready to proceed, the court properly ordered the seller to specifically perform the agreement. Vigneaux v. Carriere, 845 A.2d 304, 2004 R.I. LEXIS 71 (2004).

— Wills.

The statute of frauds does not prohibit enforcement of oral agreements to dispose of property by will where one party has completed performance that is referable exclusively to the contract. Thompson v. Thompson, 495 A.2d 678, 1985 R.I. LEXIS 557 (1985).

Although plaintiff alleged his parents made an oral agreement with him that the family home would pass to him after their deaths upon the fulfillment of certain conditions, defendant, who was plaintiff’s sibling and the executrix of the estate, plaintiff’s sister, and plaintiff’s brother-in-law credibly testified the parties’ mother had told plaintiff the house would be divided among the four children; plaintiff failed to prove by clear and convincing evidence the existence of the oral agreement. Randall v. Randall, 22 A.3d 1166, 2011 R.I. LEXIS 93 (2011).

Signatures.

The test of a signature, whether of a party to the agreement or his agent, to satisfy the statute of frauds is whether the signer intends, however implicitly, to vouch for the accuracy of the essential terms of the agreement. MacKnight v. Pansey, 122 R.I. 774 , 412 A.2d 236, 1980 R.I. LEXIS 1456 (1980).

The signature of duly authorized agents in blanks labeled “Prepared by” and “Recommend” did not manifest any intention on the part of the agents to bind the principal to the terms of the documents; neither did an agent’s signature in a blank labeled “Approve” manifest such an intention when the face of the document suggested that four such signatures were required for final approval and only one was entered. MacKnight v. Pansey, 122 R.I. 774 , 412 A.2d 236, 1980 R.I. LEXIS 1456 (1980).

The signature of a commissioner who signed a sales agreement with the full knowledge and consent of his co-commissioner meets the requirements of the statute of frauds. Demers v. Demers, 557 A.2d 1187, 1989 R.I. LEXIS 57 (1989).

Subject Matter Covered.

Claim that mingles promise of matter within statute of frauds with promise of other matters not in themselves within the statute brings entire claim within the statute. Kinden v. Foster, 60 R.I. 41 , 197 A. 100, 1938 R.I. LEXIS 102 (1938).

In an action in which plaintiff alleged that defendant’s use of modified works of art infringed plaintiff’s copyrights in certain original works of art, the statute of frauds had no applicability to defendant’s nonexclusive license to use the modified works because the existence of a nonexclusive license was implied by the conduct of the parties and asserted as an affirmative defense. Gerffert Co. v. William J. Hirten Co., LLC, 815 F. Supp. 2d 521, 2011 U.S. Dist. LEXIS 101275 (D.R.I. 2011).

Trust and Promises of Personal Representatives.
— Applicability.

Constructive trusts of land which arise ex maleficio are not within the statute of frauds. Whiting v. Dyer, 21 R.I. 85 , 41 A. 895, 1898 R.I. LEXIS 17 (1898).

This statute bars oral evidence of trusts of both personal and real property. Lawrence v. Andrews, 84 R.I. 133 , 122 A.2d 132, 1956 R.I. LEXIS 26 (1956).

Where a sister allowed a brother to act on her behalf in clearing up liens on real property and conveyed the property to him therefor without consideration, a fiduciary relationship was established; failure of the brother to reconvey title to the property to his sister was a breach thereof; a constructive trust was created, and not an oral express trust, thus the trust was enforceable and not within the statute of frauds. Cahill v. Antonelli, 120 R.I. 879 , 390 A.2d 936, 1978 R.I. LEXIS 725 (1978).

— Constructive Trusts.

A constructive trust arising in equity is not affected by the statute of frauds. Rosati v. Rossi, 47 R.I. 493 , 134 A. 18, 1926 R.I. LEXIS 87 (1926).

An oral agreement to receive and hold property in trust for the benefit of another places an obligation on the conscience of the person so receiving it, and if in fraud he seeks to take the property as his own, equity will raise a constructive trust in favor of the intended beneficiary and such constructive trust is not affected by the statute of frauds. Rosati v. Rossi, 47 R.I. 493 , 134 A. 18, 1926 R.I. LEXIS 87 (1926).

The mere refusal to execute a parol trust or the denial of its existence is not such fraud as will take the case out of the statute of frauds. State Lumber Co. v. Cuddigan, 51 R.I. 69 , 150 A. 760, 1930 R.I. LEXIS 46 (1930).

Constructive trusts arise by operation of law and not by agreement or intention and are not within the statute of frauds or statutes prohibiting establishment of parol trusts. State Lumber Co. v. Cuddigan, 51 R.I. 69 , 150 A. 760, 1930 R.I. LEXIS 46 (1930).

Transfer of title to real estate under oral agreement by grantees to sell property and account for the proceeds gave rise to a constructive trust where grantees never intended to keep their promise, so oral evidence could be introduced to establish terms of the trust. Lawrence v. Andrews, 84 R.I. 133 , 122 A.2d 132, 1956 R.I. LEXIS 26 (1956).

— Evidence.

Where grantor conveyed to respondent certain real estate in fee simple with a warranty and heirs of grantor sought to have the conveyance set aside on the grounds that it was a trust, it must be so shown in a writing signed by respondent; and letters signed by him must clearly refer to the property in question and words indicating a trust with reference to the same must clearly be shown. Taft v. Dimond, 16 R.I. 584 , 18 A. 183, 1889 R.I. LEXIS 64 (1889).

— Pleadings.

A demurrer will not lie to a bill charging breach of trust because the complaint does not show on its face whether or not the trust agreement was in writing. Cranston v. Smith, 6 R.I. 231 , 1859 R.I. LEXIS 33 (1859).

Bill to establish trust in land was not demurrable on ground that it did not aver that the agreement in question was in writing, but such objection should be taken by plea or answer. Whiting v. Dyer, 21 R.I. 85 , 41 A. 895, 1898 R.I. LEXIS 17 (1898).

— Sufficiency of Memorandum.

An agreement reading “I hereby agree to pay over to C. C. Peck the income on the Wm. H. Vaughan Trust Fund after paying premium on life insurance policy on life of said Wm. H. Vaughan and interest on $500 due me from said Vaughan said trust fund being held as collateral for a loan of $500, the payments for the income to be applied to the payment of debt due from Wm. H. Vaughan to C. C. Peck,” was not within the statute of frauds, but had it been, such memorandum would have been sufficient. Peck v. Goff, 18 R.I. 94 , 25 A. 690, 1892 R.I. LEXIS 12 (1892).

A deposition which stated that deponent held the legal title to the land involved, that complainant would get a half interest in the land if she would be good, but that deponent was not required to give complainant a half interest, did not constitute a memorandum in writing of a trust. Rogers v. Rogers, 20 R.I. 400 , 39 A. 755, 1898 R.I. LEXIS 75 (1898).

A deposition or answer in a court proceeding admitting a trust will constitute a sufficient memorandum of a trust. Rogers v. Rogers, 20 R.I. 400 , 39 A. 755, 1898 R.I. LEXIS 75 (1898).

The naming of the decedent’s father as beneficiary of the decedent’s insurance policy followed by statements of the beneficiary after the death of the decedent that he would use the proceeds of the policy to take care of the decedent’s children was insufficient to create a trust in the decedent’s father for the benefit of the children. Desnoyers v. Metropolitan Life Ins. Co., 108 R.I. 100 , 272 A.2d 683, 1971 R.I. LEXIS 1229 (1971).

Waiver of Protection.

When one charged upon an oral contract confesses it, and is willing to abide by its terms, no other person has the right to object. Browning v. Parker, 17 R.I. 183 , 20 A. 835, 1890 R.I. LEXIS 69 (1890).

Where a party makes no claim to the benefit of the statute of frauds, the court sua sponte will not interpose it for him. Ardente v. Horan, 117 R.I. 254 , 366 A.2d 162, 1976 R.I. LEXIS 1621 (1976).

A complete admission in court by the party to be charged as to the terms essential to the validity of the contract dispenses with the necessity of any writing whatsoever. Adams-Riker, Inc. v. Nightingale, 119 R.I. 862 , 383 A.2d 1042, 1978 R.I. LEXIS 623 (1978).

When a party to be charged judicially admits all of the terms of an alleged contract, he will not be permitted to perpetrate an injustice by invoking the lack of a signed memorandum as a defense. MacKnight v. Pansey, 122 R.I. 774 , 412 A.2d 236, 1980 R.I. LEXIS 1456 (1980).

— In-Court Admissions.

A writing that, standing alone, does not comport with this section can nevertheless satisfy the statute of frauds if in-court admissions of the party to be charged supply the missing elements. UXB Sand & Gravel v. Rosenfeld Concrete Corp., 641 A.2d 75, 1994 R.I. LEXIS 140 (1994).

Collateral References.

Action at law on contract within statute of frauds, doctrine of part performance as sustaining. 59 A.L.R. 1305.

Action by employee in reliance on employment contract which violates statute of frauds as rendering contract enforceable. 54 A.L.R.3d 715.

Action for Fraud or Deceit Predicated upon Oral Contract Within Statute of Frauds or Transaction of Which Oral Contract Was a Part. 30 A.L.R.7th Art. 4 (2018).

Admission by pleading of parol contract as preventing pleader from taking advantage of statute of frauds. 22 A.L.R. 723.

Admission of contract by defendant as affecting sufficiency of acts relied on to constitute part performance under the statute of frauds. 90 A.L.R. 231.

Adverse possession as against vendor by one entering under executory contract void under statute of frauds. 1 A.L.R. 1336.

Agency contract to obtain tenants as one concerning real property within statute of frauds. 151 A.L.R. 672.

Agent of undisclosed principal signing contract, as satisfying statute of frauds. 23 A.L.R. 932; 83 A.L.R. 773; 138 A.L.R. 330.

Agent’s authority to sign contract within statute of frauds, necessity of writing. 27 A.L.R. 606.

Agreement between brokers as within statute requiring agreements for commissions for sale of real estate to be in writing. 44 A.L.R.2d 741.

Agreement to be bound jointly with another for obligation covered by existing contract on which latter is liable as promisor to answer for debt, default or miscarriage of another. 101 A.L.R. 1252.

Agreement to drop or compromise will contest or withdraw objections to probate as within statute of frauds. 42 A.L.R.2d 1319.

Agreement to extend time of payment of mortgage as within statute of frauds. 97 A.L.R. 973.

Agreement to forego or delay exercise of right to foreclose or take possession under mortgage as within statute of frauds. 97 A.L.R. 793.

Agreement to release, discharge, or assign real estate mortgage as within statute of frauds. 32 A.L.R. 874.

Alterations or improvements by lessor as part performance. 101 A.L.R. 185.

Alternative oral agreement, one of the alternatives being within the statute of frauds. 13 A.L.R. 271.

Applicability of statute of frauds to agreement to rescind contract for sale of land. 42 A.L.R.3d 242.

Applicability of statute of frauds to joint adventure or partnership to deal in real estate. 18 A.L.R. 484; 95 A.L.R. 1242.

Applicability of statute of frauds to promise to pay for legal services furnished to another. 84 A.L.R.4th 994.

Applicability of statute of frauds to promise to pay for medical, dental or hospital services furnished another. 64 A.L.R.2d 1071.

Application of statute of frauds to general bonus or profit sharing plan. 81 A.L.R.2d 1066.

Application of statute of frauds to promise not to make a will. 32 A.L.R.2d 370.

Application of statute of frauds to water well-drilling contract. 90 A.L.R.2d 1346.

Attorneys, agreement that attorney shall receive part of land involved in litigation as within statute of frauds. 21 A.L.R. 352.

Bank deposit, oral promise of officer, director, or stockholder in relation to, as within statute of frauds. 95 A.L.R. 1137.

Bankrupt’s oral promise to pay discharged debt, effect of. 75 A.L.R. 601.

Brokerage or agency contract concerning real property as within statute of frauds. 151 A.L.R. 648.

Broker’s service in buying or selling real estate, right to recover for, on quantum meruit, where contract was not in writing, as required by statute in relation to brokers. 41 A.L.R.2d 905.

Brokers, sufficiency of description of property in agreement for payment of commission or authorizing or employing broker for purchase of real estate, or memorandum thereof. 80 A.L.R. 1466.

Building or construction contract, language used by owner or another person interested in, importing a promise to pay a subcontractor, materialman, or employee of contractor or subcontractor, or one making advances to him, as a promise to answer for the debt or default of another. 99 A.L.R. 79.

Building or material therein, agreement for sale of, as one for sale of interest in real property within statute of frauds. 91 A.L.R. 1280.

Buyer’s note as payment within contemplation of statute of frauds. 81 A.L.R.2d 1355.

Cancelation of debt, promise to pay another’s antecedent debt in consideration of. 74 A.L.R. 1025.

Character and extent of improvements to constitute part performance. 33 A.L.R. 1489.

Check as contract in writing within meaning of statute. 3 A.L.R.2d 809.

Check as payment. 8 A.L.R.2d 251.

Check given in land transaction as sufficient writing to satisfy statute of frauds. 9 A.L.R.4th 1009.

Check or note as memorandum satisfying statute of frauds. 20 A.L.R. 363; 153 A.L.R. 1112.

Comment note on statute of frauds and conflict of laws. 47 A.L.R.3d 137.

Compensation for services, contract to devise property as. 60 A.L.R. 19; 106 A.L.R. 745.

Computer sales and leases: Time when cause of action for failure of performance accrues. 90 A.L.R.4th 298.

Construction and application of statute which enables real estate broker to recover commission on oral contract with owner who has been served with written notice of the terms thereof. 148 A.L.R. 676.

Construction and application of UCC § 2-201(3)(b) rendering contract of sale enforceable notwithstanding statute of frauds to extent it is admitted in pleading, testimony, or otherwise in court. 88 A.L.R.3d 416.

Construction and application of UCC § 2-201(3)(c) rendering contract of sale enforceable notwithstanding statute of frauds with respect to goods for which payment has been made and accepted or which have been received and accepted. 97 A.L.R.3d 908.

Construction of statute requiring representation as to credit, etc., of another to be in writing. 32 A.L.R.2d 743.

Contract to sell land not signed by all co-owners as operative to cover interests of the signers. 154 A.L.R. 767.

Contract to support, maintain, or educate a child as within provision of statute of frauds relating to contracts not to be performed within a year. 49 A.L.R.2d 1293.

Contractual provisions as affecting right to judicial partition. 37 A.L.R.3d 962.

Corporate officers and employees, applicability to, of statute requiring agent’s authority to be in writing. 1 A.L.R. 1132.

Corporate stock or dividends thereon, validity of guaranty of, by one other than corporation. 107 A.L.R. 1171.

Corporation’s promise to pay debts of predecessor as within statute of frauds. 15 A.L.R. 1183; 149 A.L.R. 787; 149 A.L.R. 816.

Decedent, oral promise to pay debt of, in consideration of creditor’s foregoing claim against estate, as within provision of statute of frauds relating to contract to answer for debt of another, where foregoing claim is beneficial to promisor. 144 A.L.R. 1111.

Delivery of memorandum as necessary to its effectiveness to satisfy statute of frauds. 12 A.L.R.2d 508.

Description in memorandum defective or silent as to boundary line of land retained by seller as sufficient to satisfy statute of frauds. 139 A.L.R. 965.

Devise or bequest as compensation for services, agreement to make. 69 A.L.R. 19; 106 A.L.R. 742.

Discharge of existing debt (or crediting indebtedness) as part payment which will take contract out of statute of frauds. 23 A.L.R. 473.

Doctrine of part performance as applied to contract embracing more than one subject matter. 38 A.L.R. 693.

Doctrine of part performance as sustaining action at law based on contract within statute of frauds. 59 A.L.R. 1305.

Doctrine of part performance with respect to renewal option in lease not complying with statute of frauds. 80 A.L.R.2d 425.

Effect of oral agreement to enlarge time for redemption from sale under mortgage or other lien on real property. 54 A.L.R. 1207.

Employment, statute of frauds as applicable to agreement by which a corporation or individual is substituted as employer in place of party to original contract. 107 A.L.R. 1330.

Enforceability, under statute of frauds provision as to contracts not to be performed within a year, of oral employment contract for more than one year but specifically made terminable upon death of either party. 88 A.L.R.2d 701.

Establishment of boundary line by oral agreement. 69 A.L.R. 1433; 113 A.L.R. 423.

Estoppel of one not party to transaction involving real property by failure to disclose his interest in the property as affected by statute of frauds. 50 A.L.R. 685.

Estoppel, relation between doctrines of, and part performance as basis of enforcement of contract not conforming to statute of frauds. 75 A.L.R. 650; 117 A.L.R. 939.

Exceptions to rule that oral gifts of land are unenforceable under statute of frauds. 83 A.L.R.3d 1294.

Exchange or remittance, agreements in relation to as within statute of frauds. 19 A.L.R. 1140.

Extension of existing mortgage or deed of trust by subsequent oral agreement to cover additional indebtedness. 76 A.L.R. 579.

Extinguishment or modification of easement by oral agreement. 71 A.L.R. 1370.

Extrinsic writing referred to in written agreement as part thereof for purposes of statute of frauds. 73 A.L.R. 1383.

Failure to lose weight as basis for reduction of damages in personal injury action. 24 A.L.R.5th 174.

Failure to object to parol evidence or voluntary introduction thereof, as waiver of defense of statute of frauds. 15 A.L.R.2d 1330.

Fiance, promise to convey real property to intended husband or wife, in consideration of marriage as within statute of frauds. 75 A.L.R.2d 633.

Fixtures, installation of, as part performance which will take parol lease out of statute of frauds. 10 A.L.R. 1495.

Formal or written instrument as essential to completed contract, where the making of such instrument is contemplated by parties to verbal or informal agreement. 122 A.L.R. 1217; 165 A.L.R. 756.

Fraud or deceit, independent action for, predicated upon oral contract within statute of frauds or transaction of which oral contract was a part. 104 A.L.R. 1420.

Funeral expenses of another, statute of frauds as applicable to contract to be responsible for. 134 A.L.R. 633.

Husband’s or wife’s possession or improvement of real property of other spouse, may part performance of oral contract to convey be predicated upon. 74 A.L.R. 218.

Improvements, right of vendee who enters under parol contract, to recover for, where vendor refuses to convey. 17 A.L.R. 949.

Increased rent, liability for, of tenant holding over after notice of increase, as affected by statute of frauds. 109 A.L.R. 209.

Inducing breach of contract in violation of statute of frauds, liability for. 84 A.L.R. 49; 23 A.L.R.2d 1209.

Initials as sufficient signature under statute of frauds. 159 A.L.R. 253.

Insurance, oral contracts of. 15 A.L.R. 995; 69 A.L.R. 559; 92 A.L.R. 232.

Interest or benefit to person making representation as affecting applicability of statute requiring representations as to credit, etc., of another to be in writing. 32 A.L.R.2d 743.

Irreparable injury as necessary condition of part performance which will take oral contract out of statute of frauds. 166 A.L.R. 443.

Joint, mutual, and reciprocal wills, contract to make as within statute of frauds. 169 A.L.R. 39.

Joint obligors, oral agreement between as to extent of liability inter se. 65 A.L.R. 826.

Labor union’s agreement to continue wages or pay benefits if other party loses employment because of joining union. 114 A.L.R. 1300; 125 A.L.R. 1260.

Landlord’s or tenant’s promise to pay for supplies furnished tenant or subtenant. 59 A.L.R. 179.

Lead pencil signature. 8 A.L.R. 1339.

Lease defectively executed, right to maintain action upon, for damages as for breach of contract. 82 A.L.R. 1318.

Leasehold for corporation or its subsidiary, implied authority of manager of private corporation to take or negotiate. 107 A.L.R. 996.

Lease, interest created by as real estate within provisions of statute of frauds requiring writing as condition of agent’s or broker’s right to compensation or his authority to contract. 103 A.L.R. 833.

Letters between one of the parties to a contract and his agent or a third person as satisfying statute of frauds. 112 A.L.R. 490.

Lien of vendee for purchase money paid under invalid parol contract. 45 A.L.R. 391.

May part performance or part payment which will take oral contract out of statute of frauds be predicated upon giving up present position, employment, business or profession, or opportunities in the field? 125 A.L.R. 399.

Meaning of “duplicate.” 24 A.L.R. 1209.

Modern status of defaulting vendee’s right to recover contractual payments withheld by vendor as forfeited. 4 A.L.R.4th 993.

Moral obligation connected with contract within statute of frauds as consideration for executory promise. 17 A.L.R. 1353; 79 A.L.R. 1334; 8 A.L.R.2d 787.

Mortgage on real estate, doctrine of part performance as applied to advance of money on oral agreement for. 30 A.L.R. 1403.

Mortgage, rights and remedies of one who advances money to purchase real estate under an oral agreement by the vendee to give a mortgage thereon as security. 18 A.L.R. 1098.

Mortgagor or judgment debtor, part performance as predicated upon continuance in possession by, as taking out of statute of frauds oral contracts between mortgagor and mortgagee subsequent to foreclosure or expiration of period of redemption, or between judgment debtor and execution purchaser subsequent to execution sale. 136 A.L.R. 262.

Mutual promises to marry as made in or upon consideration of marriage within statute of frauds. 75 A.L.R.2d 633.

Name of principal, or of authorized agent in body of instrument, as satisfying statute of frauds where transaction was not conducted by him. 28 A.L.R. 1114.

Necessity and sufficiency of statement of consideration in contract or memorandum of sale of land, under statute of frauds. 23 A.L.R.2d 164.

Necessity of writing to create right by private grant or reservation to hunt or fish on another’s land. 49 A.L.R.2d 1395.

Necessity of written authority to enable agent to make contract within statute of frauds. 27 A.L.R. 606.

Negotiable Instruments Law, provision of, requiring renunciation of rights to be in writing. 65 A.L.R.2d 593.

Note, check, or other executory obligation representing consideration for a contract which plaintiff is willing and able to perform, but which because of the statute of frauds would not have been enforceable against him, right to recover upon. 132 A.L.R. 1486.

Oil and gas lease, sufficiency of, as regards statute of frauds, of description of in written contract or memorandum for sale or assignment of. 141 A.L.R. 814.

Oil and gas royalty as realty for purpose of statute of frauds. 90 A.L.R. 770; 101 A.L.R. 884; 131 A.L.R. 1371.

One party, or his agent, as agent of other party for purpose of signing contract or memorandum required by statute of frauds. 47 A.L.R. 201.

Option for renewal or extension of contract for a year or less as affecting applicability of statute of frauds. 111 A.L.R. 1105.

Option in lease for extension of term or for new lease as affecting applicability of statute of frauds. 161 A.L.R. 1094.

Option or election in respect of subject matter as affecting validity under statute of frauds of written instrument as contract for sale of goods. 105 A.L.R. 1106.

Option to purchase at price offered to optionor by third person, validity as against objection of noncompliance with statute of frauds. 136 A.L.R. 143.

Option to purchase property as within statute of frauds in relation to real property. 61 A.L.R. 1454.

Oral acceptance of written offer by party to be charged as satisfying statute of frauds. 30 A.L.R.2d 972.

Oral contract for personal services as long as employee is able to continue in work, to do satisfactory work, or the like as within statute of frauds relating to contracts not to be performed within year. 28 A.L.R.2d 878.

Oral contract for year’s service as within statute of frauds. 27 A.L.R. 663; 114 A.L.R. 416.

Oral contract of employment terminable by one, but not both, of the parties within provision of statute of frauds relating to contracts not to be performed within one year. 161 A.L.R. 290.

Oral contract to enter into written contract as within statute of frauds. 58 A.L.R. 1015.

Oral contract to make joint will, estoppel to assert defense of statute of frauds. 169 A.L.R. 43.

Oral surrender of written lease. 78 A.L.R.2d 933.

“Owner,” scope and import of term, in statutes requiring real estate broker to have written authority. 2 A.L.R. 801; 95 A.L.R. 100; 95 A.L.R. 1085.

Paid employment, accepting or remaining in, as part performance which will take oral contract to devise real property out of statute of frauds. 40 A.L.R. 223.

Parol exception of fixtures from conveyance or lease. 29 A.L.R.3d 1441.

Parol lease for term of one year to commence in future as within statute of frauds. 111 A.L.R. 1465.

Part of contract within statute of frauds, failure to comply with statute as to, as affecting enforceability of another part not within statute. 71 A.L.R. 492.

Part performance to take oral contract of lease out of statute of frauds predicated upon acts or conduct of one in possession of property under another contract or right. 125 A.L.R. 1463.

Partnership debts, incoming partner’s oral assumption of. 45 A.L.R. 1273.

Partnership, who must sign and form of signature in case of, in order to comply with statute of frauds. 114 A.L.R. 1005.

Performance as taking contract, not to be performed within a year, out of statute of frauds. 6 A.L.R.2d 1053.

Place of signature on memorandum to satisfy statute of frauds. 112 A.L.R. 937.

Pleadings, depositions, testimony, or statements in court as constituting a sufficient writing within statute of frauds. 22 A.L.R. 735.

Price fixed in contract violating statute of frauds as evidence of value in action on quantum meruit. 21 A.L.R.3d 9.

Printed, stamped or typewritten name as satisfying requirement of statute of frauds as regards signature. 171 A.L.R. 334.

Promise by one other than principal to indemnify one agreeing to become surety or guarantor as within statute of frauds. 13 A.L.R.4th 1153.

Promissory estoppel as basis for avoidance of statute of frauds. 56 A.L.R.3d 1037.

Promissory estoppel as basis for avoidance of UCC statute of frauds (UCC § 2-201). 29 A.L.R.4th 1006.

Promissory estoppel as to statute of frauds. 48 A.L.R.2d 1069.

Promissory estoppel of lending institution based on promise to lend money. 18 A.L.R.5th 307.

Public record as satisfying requirement of statute of frauds as to written contract or memorandum. 127 A.L.R. 236.

Question for court or jury as to whether informal writing constituted contract where parties intended agreement to be expressed in formal writing. 100 A.L.R. 989.

Real estate broker’s right to recover in quantum meruit for services although contract not in writing as required by statute. 41 A.L.R.2d 905.

Real property, permitting record title to, to stand in another’s name as estopping owner to avail himself of statute requiring authority to contract regarding real estate to be in writing. 78 A.L.R. 588.

Reformation of memorandum relied on to take oral contract out of statute of frauds. 73 A.L.R. 99.

Release to ancestor by heir of expected interest in real estate. 28 A.L.R. 451.

Restrictions on use of real property. 5 A.L.R.2d 1316.

Rights of parties under oral agreement to buy or bid in land for another. 42 A.L.R. 10; 135 A.L.R. 232; 27 A.L.R.2d 1285.

Sale, or contract for sale, of standing timber as within provision of statute of frauds respecting sale or contract for sale of real property. 7 A.L.R.2d 517.

Satisfaction of statute of frauds by e-mail. 110 A.L.R.5th 277.

Several papers constituting contract, necessity that each be signed by party to be charged. 85 A.L.R. 1184.

Signature to contract by agent of undisclosed principal as satisfying statute of frauds. 23 A.L.R. 932; 138 A.L.R. 330.

Solid mineral royalty as real or personal property for purposes of statute of frauds. 68 A.L.R.2d 728.

Specific performance of parol contract to convey real property as affected by payment or part payment of purchase price. 101 A.L.R. 1079.

Statute of frauds against oral contracts not to be performed within year as applicable to contract susceptible by its terms, or by construction, where performance within that time is impossible or almost impossible. 129 A.L.R. 534.

Statute of frauds as affecting agreement with subpurchaser of realty. 38 A.L.R. 1348.

Statute of frauds as affecting enforceability as between parties of agreement to purchase property as judicial or tax sale for their joint benefit. 14 A.L.R.2d 1267.

Statute of frauds as affecting option for repurchase by vendor. 44 A.L.R.2d 342.

Statute of frauds as affecting question when real estate owned by partner before formation of partnership will be deemed to have become asset of firm. 45 A.L.R. 1015.

Statute of frauds as affecting question whether person, who signs contract but is not named in body thereof, is party to contract and liable thereunder. 94 A.L.R.2d 691.

Statute of frauds as applicable to sale or other transaction between partners in respect of partnership real property. 171 A.L.R. 198.

Statutory necessity and sufficiency of written statement as to amount of compensation in broker’s contract to promote purchase, sale or exchange of real estate. 9 A.L.R. 747.

Subpurchaser of realty, statute of frauds as affecting agreement with. 38 A.L.R. 1348.

Sufficiency of description or designation of land in contract or memorandum of sale, under statute of frauds. 23 A.L.R.2d 6.

Sufficiency of memorandum of lease agreement to satisfy the statute of frauds, as regards terms and conditions of lease. 16 A.L.R.2d 621.

Sufficiency, under statute of frauds, of description or designation of land in contract or memorandum of sale which gives right to select the tract to be conveyed. 46 A.L.R. 894.

Sufficiency under statute of frauds, of description or designation of property in real estate brokerage contract. 30 A.L.R.3d 935.

Surrender of written lease by parol. 78 A.L.R.2d 933.

Telegram between one of the parties to a contract and his agent or a third person as satisfying statute of frauds. 112 A.L.R. 490.

Trustee under deed of trust securing bonds, necessity that appointment of substitute for, be in writing. 98 A.L.R. 1159.

Trust, part performance or change of position as affecting applicability of statute to contract to surrender, rescind, or abandon. 106 A.L.R. 1318; 173 A.L.R. 281.

Undelivered deed or escrow, pursuant to oral contract, as satisfying statute of frauds. 100 A.L.R. 196.

Undelivered lease or contract (other than for sale of land), or undelivered memorandum thereof, as satisfying statute of frauds. 12 A.L.R.2d 508.

Validity and construction of putative father’s promise to support or provide for illegitimate child. 20 A.L.R.3d 500.

Validity and duration of contract purporting to be for permanent employment. 60 A.L.R.3d 226.

Validity of lease or sublease subscribed by one of the parties only. 46 A.L.R.3d 619.

Validity of oral promise or agreement not to revoke will. 29 A.L.R.2d 1229.

Vendor or purchaser, sufficiency of identification of, in memorandum. 70 A.L.R. 196.

Vendee’s liability for use and occupancy of premises, where vendor disaffirms land contract unenforceable under statute of frauds. 49 A.L.R.2d 1169.

Vendor’s willingness and ability to perform contract which does not satisfy statute of frauds as precluding purchaser’s recovery back of payments made thereon. 169 A.L.R. 187.

Warranty or guaranty in respect of the subject matter of a contract between third persons, which in terms does not embrace such an obligation. 19 A.L.R. 1033.

What constitutes part performance sufficient to take agreement in consideration of marriage out of statute of frauds. 30 A.L.R.2d 1419.

When is promise made in consideration of marriage within statute of frauds. 75 A.L.R.2d 633.

Who is real estate agent, salesman, or broker within meaning of statute. 56 A.L.R. 480; 167 A.L.R. 774.

Will as sufficient memorandum of contract to devise or bequeath property as compensation for services. 69 A.L.R. 206; 106 A.L.R. 742.

Will, or instrument in form of will, as memorandum of contract to devise or bequeath sufficient to satisfy statute of frauds. 94 A.L.R.2d 921.

Writing between one of the parties to a contract and his agent or third person as satisfying statute of frauds. 112 A.L.R. 490.

Writings prior to oral agreement, memorandum which will satisfy statute of frauds as predicable in whole or in part upon. 1 A.L.R.2d 841.

Written authority to agent to sign contract within statute of frauds, necessity of. 27 A.L.R. 606.

9-1-5. Liability of landlord for improvements to real estate by tenant by oral lease.

The owner of real estate who induces a tenant to occupy it by promising to give him or her a lease of the real estate, the term of which is more than one year, shall be liable, if he or she fails or refuses to fulfill his or her promise, for the cost to the tenant of all improvements, repairs, alterations, betterments, and equipment made to, or placed upon the occupied premises, in reliance upon the promise and with the approval of the owner; provided, however, that this section shall not apply in case of a definite letting where rent is reserved or paid, nor in case the unfulfilled promise of the owner is in writing and is itself legally enforceable, nor in case of original or continued occupancy of the premises under a written instrument, signed by the parties. Such costs shall be recoverable by the tenant, his or her heirs, executors, administrators, successors, and assigns, in a civil action for money had and received, brought against the owner, his or her heirs, executors, administrators, successors, or assigns, commenced within one year after the termination of the original tenancy, and not thereafter. Neither the tender of the promised lease after termination of, or notice of intention to terminate, the original tenancy, nor delay during occupancy to begin suit, shall prejudice or defeat the action.

History of Section. G.L., ch. 296, § 25, as enacted by P.L. 1932, ch. 1960, § 1; G.L. 1938, ch. 481, § 2; G.L. 1956, § 9-1-5 ; P.L. 1965, ch. 55, § 6.

Cross References.

Landlord and tenant generally, § 34-18-1 et seq.

9-1-6. Causes and actions surviving death of parties.

In addition to the causes of action and actions which at common law survive the death of the plaintiff or defendant therein, the following causes of action or actions shall also survive:

  1. Causes of action and actions of waste.
  2. Causes of action and actions of replevin and for conversion.
  3. Causes of action and actions for damages to the person or to real and personal estate.

History of Section. C.P.A. 1905, § 227; G.L. 1909, ch. 283, § 7; G.L. 1923, ch. 333, § 7; G.L. 1938, ch. 512, § 1; G.L. 1956, § 9-1-6 ; P.L. 1965, ch. 55, § 6.

Cross References.

Actions for waste, § 34-14-1 et seq.

Actions in replevin, § 34-21-1 et seq.

Actions in trespass, § 34-20-1 et seq.

Corporate directors, officers, and stockholders, survival of actions by and against, §§ 7-4-15 , 7-4-16 .

Partition action, decease of parties, § 34-15-12 .

Paternity case not abated by death of complainant, § 15-8-17 .

Comparative Legislation.

Survival of actions:

Conn. Gen. Stat. § 52-599 et seq.

Mass. Ann. Laws, ch. 228, § 1 et seq.

NOTES TO DECISIONS

Conspiracy.

An action of the case for conspiracy will survive under the provisions of this section. Young v. Aylesworth, 35 R.I. 259 , 86 A. 555, 1913 R.I. LEXIS 22 (1913).

Deceit.

An action for deceit is included under the class of the trespass on the case, and so such an action against the defendant’s executrix should be allowed. Bullowa v. Gladding, 40 R.I. 147 , 100 A. 249, 1917 R.I. LEXIS 17 (1917).

Injury to Vendor’s Lien.

An administrator could maintain an action against the deceased’s mortgagee who had conveyed the estate for an amount less than the sale price but who had represented to the deceased that the full price had been paid, since by such representations he prevented the deceased from claiming a purchase-money lien which was later lost when the property was conveyed to a bona fide purchaser; such a lien was personal property within the meaning of P.S. 1882, ch. 204, § 8. Reynolds v. Hennessy, 17 R.I. 169 , 20 A. 307, 23 A. 639 (1890).

Judgment.

Since an action for trespass for damages to the person survives, the administrator of plaintiff who died after decision was entitled to enter his appearance for the plaintiff and secure a judgment. Hambly v. Hayden, 20 R.I. 558 , 40 A. 417, 1898 R.I. LEXIS 109 (1898).

Plaintiffs were entitled to entry of judgment against administrator where neither decedent nor administrator had filed timely notice of intent to petition for new trial. Martin v. Hutchens, 21 R.I. 258 , 43 A. 70, 1899 R.I. LEXIS 41 (1899).

Nuisances.

An action on the case for building a large wooden stable so near the buildings of plaintiff as to cause a nuisance survived the death of the defendant and could be prosecuted against his executor. Aldrich v. Howard, 8 R.I. 125 , 1864 R.I. LEXIS 14 (1864).

Personal Injury Actions.

The action for personal injury upon which the deceased could have sued at common law, if death had not ensued, is given by a statute for survival for the benefit of his estate. Lubrano v. Atlantic Mills, 19 R.I. 129 , 32 A. 205, 1895 R.I. LEXIS 53 (1895).

The words “damages to the person” mean bodily or physical injury and do not include feeling and reputation. Young v. Aylesworth, 35 R.I. 259 , 86 A. 555, 1913 R.I. LEXIS 22 (1913).

Action of trespass on the case for damages including pain and suffering brought in lifetime survived death of plaintiff and could be prosecuted by executrix. Grimes v. United E. R. Co., 58 R.I. 458 , 193 A. 740, 1937 R.I. LEXIS 73 (1937).

Reciprocal Rights.

The rights under this statute are reciprocal in that any action surviving for a personal representative of an estate could also be maintained against a personal representative. Bullowa v. Gladding, 40 R.I. 147 , 100 A. 249, 1917 R.I. LEXIS 17 (1917).

Remedial Statutes.

An action brought for larceny under a statute which was remedial and not penal survived the death of the plaintiff and could be prosecuted in the name of the plaintiff’s executors. Aylsworth v. Curtis, 19 R.I. 517 , 34 A. 1109, 1896 R.I. LEXIS 33 (1896).

Third Party Beneficiary Rule.

The contention of plaintiff widow that under the third party beneficiary rule the plaintiff could bring action in her own name because she was a third party who benefited by the contract made by her joint tenant to have roof repaired was without merit since the contract to repair the roof was a personal one between decedent and defendant, of which at the time plaintiff knew nothing and as such a contract was enforceable only by the parties thereto or their legal representatives when the right of action survived. Bomes v. Rhode Island Concrete & Roofing Co., 89 R.I. 311 , 152 A.2d 543, 1959 R.I. LEXIS 84 (1959).

Wrongful Death Action.

An action on the case for negligence to recover damages for wrongful death, brought not against the wrongdoer but after his decease against his estate, did not survive. McFadden v. Rankin, 46 R.I. 475 , 129 A. 267, 1925 R.I. LEXIS 40 (1925).

By providing for survival of trespass on the case after the death of the wrongdoers, the legislature was not thereby creating a right of action in favor of one who could not have maintained it against the tortfeasor in his lifetime. Castellucci v. Castellucci, 96 R.I. 34 , 188 A.2d 467, 1963 R.I. LEXIS 41 (1963).

The legislature providing for survival of actions of trespass on the case did not in the case of minor children give them a right to maintain an action against the estate of a tortfeasor, their father, where at common law no such action could have been maintained by reason of their relationship to the tortfeasor. Castellucci v. Castellucci, 96 R.I. 34 , 188 A.2d 467, 1963 R.I. LEXIS 41 (1963).

Collateral References.

Abatement of state criminal case by accused’s death pending appeal of conviction — modern cases. 80 A.L.R.4th 189.

Abatement or survival of action for attorney’s malpractice or negligence upon death of either party. 65 A.L.R.2d 1211.

Abatement upon death, of cause of action to enforce personal liability of corporate officer, director, or trustee. 79 A.L.R. 1517.

Alienation of affections or criminal conversation, survival of action or cause of action for. 14 A.L.R. 693; 24 A.L.R. 488; 57 A.L.R. 351.

Claim for negligently damaging or destroying personal property as surviving tort-feasor’s death. 40 A.L.R.2d 533.

Claim for punitive damages in tort action as surviving death of tortfeasor or person wronged. 30 A.L.R.4th 707.

Contract, survivability of cause of action in tort against third person for procuring breach of. 93 A.L.R. 1133.

Death as terminating coexecutor’s, co-administrator’s or testamentary cotrustee’s liability for defaults or wrongful acts of fiduciary in handling estate. 65 A.L.R.2d 1019.

Death of contestant as affecting contest of will. 120 A.L.R. 324; 124 A.L.R. 751; 127 A.L.R. 868.

Death of party to divorce suit after final divorce decree, but pending appeal or period allowed for appeal. 148 A.L.R. 1111.

Death of putative father as precluding action for determination of paternity or for child support. 58 A.L.R.3d 188.

Dividends wrongfully paid, survival of director’s liability for. 55 A.L.R. 129; 76 A.L.R. 885.

Eavesdropping as violating right of privacy. 11 A.L.R.3d 1296.

Effect of death of beneficiary upon right of action under death statute. 13 A.L.R.4th 1060.

Effect of death of party to divorce or annulment suit before final decree. 104 A.L.R. 654; 158 A.L.R. 1205.

Effect of death of party to divorce proceeding pending appeal or time allowed for appeal. 33 A.L.R.4th 47.

Effect of delay in appointing administrator or other representative on cause of action accruing at or after death of person in whose favor it would have accrued. 28 A.L.R.3d 1141.

Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases. 12 A.L.R.5th 195.

Garnishment or attachment, death of principal defendant as abating or dissolving. 21 A.L.R. 272; 131 A.L.R. 1146.

Husband’s or parent’s action or right of action for consequential damages arising from injury to wife or minor children, survival of, upon death of wrongdoer. 78 A.L.R. 593.

Interlocutory decree of divorce, effect of death of one party after. 109 A.L.R. 1011; 174 A.L.R. 519.

Libel or slander, abatement or survivial upon death of party, of action or cause of action based on. 134 A.L.R. 717.

Medical malpractice action as abating upon death of either party. 50 A.L.R.2d 1445.

Modern status: inheritability or descendability of right to contest will. 11 A.L.R.4th 907.

Mortgagee’s death after sale of property but before confirmation of sale, abatement on. 150 A.L.R. 502.

Nunc pro tunc judgment after death of party in action which does not survive. 3 A.L.R. 1423; 68 A.L.R. 261; 104 A.L.R. 654.

Partnership creditor’s right to proceed against estate of deceased partner as affected by survival statutes. 61 A.L.R. 1423.

Privacy, survival of right of action for invasion of right of. 138 A.L.R. 109; 57 A.L.R.3d 16.

Purchase or sale of property, survivability of action or cause of action in tort for damages for fraudulently procuring. 76 A.L.R. 403.

Relation between survivability of cause of action and abatability of pending action. 92 A.L.R. 956.

Reputation, what actions or causes of action involve injury to, within statute relating to survival of causes of action or abatement of action. 117 A.L.R. 574.

Statutory added liability of stockholder as affected by his death. 79 A.L.R. 1537; 96 A.L.R. 1466.

Statutory liability for physical injuries inflicted by animal as surviving defendant’s death. 40 A.L.R.2d 543.

Support of relative, survival of statutory liability for. 96 A.L.R. 537.

Survivability of cause of action created by civil rights statute. 88 A.L.R.2d 1153.

Survival of action based on delay in passing upon application for insurance. 32 A.L.R.2d 487.

Survival of action or cause of action for breach of contract to marry. 34 A.L.R. 1363.

Survival of action or cause of action for personal injuries upon death of tort-feasor. 78 A.L.R. 600.

Survival of cause of action for injury to property under Civil Damage Act. 94 A.L.R.2d 1140.

Survival of cause of action for personal injury against tort-feasor killed in same accident. 70 A.L.R. 1319.

Survival of cause of action under liquor dealer’s bond. 94 A.L.R.2d 1140.

Survival of obligation of guaranty. 41 A.L.R.2d 1213.

Tort-feasor’s death before death of injured person as precluding action for death. 112 A.L.R. 343.

When is death “instantaneous” for purposes of wrongful death or survival action. 75 A.L.R.4th 151.

Widow’s or family allowance, abatement of action or proceeding for, upon death of beneficiary. 144 A.L.R. 285.

9-1-7. Prosecution and defense of actions by executor or administrator.

All the causes of action and actions as provided in § 9-1-6 may be originally brought and prosecuted by and against executors and administrators; and if brought or prosecuted by or against any person in his or her lifetime, the action may be prosecuted or defended by his or her executor or administrator.

History of Section. C.P.A. 1905, § 228; G.L. 1909, ch. 283, § 8; G.L. 1923, ch. 333, § 8; G.L. 1938, ch. 512, § 2; G.L. 1956, § 9-1-7 .

Cross References.

Continuation against executor or administrator of deceased defendant, § 33-11-44 .

Prosecution or defense of action by executor or administrator of deceased party, § 33-9-24 .

NOTES TO DECISIONS

Defense by Personal Representative.

After the death of the defendant it is the duty of his executors and administrators to defend any actions commenced during the lifetime of the defendant and the statute of limitations for actions against executors and administrators has no application to such case. Sprague v. Greene, 20 R.I. 153 , 37 A. 699, 1897 R.I. LEXIS 65 (1897).

Reciprocal Right.

The rights of action by and against the executors and administrators are reciprocal, and actions which would survive in favor of an executor or administrator of the injured person survive against the executor or administrator of the wrongdoer. Bullowa v. Gladding, 40 R.I. 147 , 100 A. 249, 1917 R.I. LEXIS 17 (1917).

Collateral References.

Constitutionality of statute allowing suit to be continued against foreign executor or administrator on death of defendant. 40 A.L.R. 796.

Survival of action or cause of action for wrongful death against representative of wrongdoer. 61 A.L.R. 830; 171 A.L.R. 1392.

Usury, survival of claim for, action against estate of usurer. 78 A.L.R. 451.

9-1-8. Actual damages only to be granted after death of party.

Whenever any of the causes of action or actions as provided in § 9-1-6 are, originally or by survival, brought or prosecuted by or against the executor or administrator of the party originally liable, the plaintiff shall be entitled to recover only the value of the goods taken, or the damage actually sustained, without any vindictive or exemplary damages, or damages for any alleged outrage to the feelings of the injured party.

History of Section. C.P.A. 1905, § 229; G.L. 1909, ch. 283, § 9; G.L. 1923, ch. 333, § 9; G.L. 1938, ch. 512, § 3; G.L. 1956, § 9-1-8 .

NOTES TO DECISIONS

Pain and Suffering.

Executrix was entitled to recover damages for pain and suffering from injuries, even though no vindictive or exemplary damages can be recovered under this section, since decedent could have recovered such damages. Grimes v. United E. R. Co., 58 R.I. 458 , 193 A. 740, 1937 R.I. LEXIS 73 (1937).

Remarks to Jury.

Although plaintiff conceded that it was not within the discretion of the jury to award punitive damages, such damages being prohibited in actions brought by executors or administrators for wilful torts committed against their intestate, however, the remarks of the trial justice “I see no act of violence and wanton deliberateness that would warrant that,” made to the jury on the question of damages constituted an invasion of the jury’s province on the question of liability and went to the heart of plaintiff’s testimony, reflecting on her credibility. Worthington v. Shewcov, 89 R.I. 169 , 152 A.2d 91, 1959 R.I. LEXIS 64 (1959).

Collateral References.

Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases. 12 A.L.R.5th 195.

Homeowner’s liability insurance coverage of emotional distress allegedly inflicted on third party by insured. 8 A.L.R.5th 254.

Liability of cigarette manufacturers for punitive damages. 108 A.L.R.5th 343.

Plaintiff ’s rights to punitive or multiple damages when cause of action renders both available. 2 A.L.R.5th 449.

Punitive damages: relationship to defendant’s wealth as factor in determining propriety of award. 87 A.L.R.4th 141.

Recovery for emotional distress based on fear of contracting HIV or AIDS. 59 A.L.R.5th 535.

Validity, construction, and application of statutes requiring that percentage of punitive damages awards be paid directly to state or court-administered fund. 16 A.L.R.5th 129.

Validity of state statutory cap on punitive damages. 103 A.L.R.5th 379.

9-1-9. Survival of actions for the recovery of possession of land.

Civil actions to recover possession of land shall survive the death of the plaintiff or defendant and may be prosecuted or defended by the heir, devisee, executor, or administrator of the deceased party, as the right may descend or vest.

History of Section. C.P.A. 1905, § 230; G.L. 1909, ch. 283, § 10; G.L. 1923, ch. 333, § 10; G.L. 1938, ch. 512, § 4; G.L. 1956, § 9-1-9 ; P.L. 1965, ch. 55, § 6.

Cross References.

Actions of ejectment, § 34-20-2 .

Collateral References.

Slander of title: sufficiency of plaintiff ’s interest in real property to maintain action. 86 A.L.R.4th 738.

9-1-10. Settlement of real estate title in action involving executor or administrator.

In no case shall the title to real estate be settled or affected, except so far as relates to the case on trial, if and so far as the case on trial shall be prosecuted or defended by an executor or administrator.

History of Section. C.P.A. 1905, § 231; G.L. 1909, ch. 283, § 11; G.L. 1923, ch. 333, § 11; G.L. 1938, ch. 512, § 5; G.L. 1956, § 9-1-10 .

9-1-11. Survival of claims for damages in laying out of highways.

Claims for damages on account of the laying out of highways through lands of the claimants, and appeals from proceedings in laying out highways, shall survive the death of the claimant and appellant; and the executors, administrators, heirs, and devisees of the claimant or appellant may, jointly or severally, according to their interest, prosecute the claim or appeal in any stage of the proceedings. In case of an appeal by the executors, administrators, heirs, or devisees, the proceedings shall be taken in the manner prescribed in chapter 23 of title 33; but the appeal shall be claimed within eighty (80) days after the determination appealed from, and all other periods, except as to notice mentioned in that chapter, shall be increased by forty (40) days.

History of Section. C.P.A. 1905, § 232; G.L. 1909, ch. 283, § 12; G.L. 1923, ch. 333, § 12; G.L. 1938, ch. 512, § 6; G.L. 1956, § 9-1-11 .

NOTES TO DECISIONS

Appeal.

The children and the heirs at law of one whose land has been taken or condemned for a highway and who dies after the action of the town council and before the expiration of the time allowed for an appeal, are entitled to take and prosecute an appeal from the town council. Ross v. Town Council of N. Providence, 10 R.I. 461 , 1873 R.I. LEXIS 19 (1873).

9-1-12. When action is commenced for purposes of statute of limitations.

An action is commenced for purposes of the statute of limitations when the complaint is either filed with the court, deposited in the mail addressed to the clerk, or delivered to an officer for service.

History of Section. P.L. 1965, ch. 55, § 6; P.L. 1966, ch. 1, § 4.

NOTES TO DECISIONS

Extension of Time.

Arrestee’s 42 U.S.C.S. § 1983 claim for false arrest against a police officer could not be dismissed as untimely under R.I. Gen. Laws § 9-1-14(b) at the summary judgment stage because it was unclear whether the arrestee’s state court action against the police officer was ever commenced and whether the arrestee’s state court action was terminated in a manner qualifying him for an extension under the savings provision in R.I. Gen. Laws § 9-1-22 . Bibby v. Petrucci, 2009 U.S. Dist. LEXIS 113573 (D.R.I. Dec. 4, 2009).

Tolling of Statute of Limitations.

The commencement of an action by any of the methods set forth in former Super. Ct. R. Civ. P. Rule 3, viz. (1) by filing a complaint with the court together with the entry fee prescribed by law, or (2) by depositing the complaint with said fee in the mail addressed to the clerk, or (3) by delivery of a summons and complaint to an officer for service, tolled the statute of limitations. Pisaturo v. Automobile Mut. Ins. Co., 102 R.I. 209 , 229 A.2d 756, 1967 R.I. LEXIS 672 (1967).

Plaintiff’s claim that the statute of limitations was tolled because, through the filing of the petition for the perpetuation of testimony 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 (1994).

Collateral References.

Insurer’s waiver of defense of statute of limitations. 104 A.L.R.5th 331.

When statute of limitations begins to run as to cause of action for nuisance based on air pollution. 19 A.L.R.4th 456.

9-1-13. Limitation of actions generally — Product liability.

  1. Except as otherwise specially provided, all civil actions shall be commenced within ten (10) years next after the cause of action shall accrue, and not after.
  2. [Ruled unconstitutional, see case notes]  Notwithstanding the provisions of subsection (a) of this section, an action for the recovery of damages for personal injury, death, or damage to real or personal property, including any action based upon implied warranties arising out of an alleged design, inspection, listing, or manufacturing defect, or any other alleged defect of whatsoever kind or nature in a product, or arising out of any alleged failure to warn regarding a product, or arising out of any alleged failure to properly instruct in the use of a product, shall be commenced within ten (10) years after the date the product was first purchased for use or consumption.

History of Section. P.L. 1965, ch. 55, § 6; P.L. 1978, ch. 299, § 2.

Cross References.

General laws, effect on periods of limitations, § 43-4-14 .

Insurance policies, minimum period of limitations, § 27-4-13 .

Redevelopment projects, actions to contest validity of proceedings, § 45-32-22 .

Tax refund, limitation of actions, § 44-7-20 .

Utilities and carriers, limitation on actions for violation of duty, § 39-2-7 .

Law Reviews.

John W. Caruolo, 2016 Survey, Cases: Labor and Employment Law: Goddard v. APG Security-RI, LLC, 22 Roger Williams U. L. Rev. 842 (2017).

NOTES TO DECISIONS

Constitutionality.

Subsection (b) is unconstitutional, as it completely denies products-liability claimants of their day in court, notwithstanding the merits of their claims and the direct liability of the potential defendants. If the constitutional guarantee of right of access to the courts is to have any meaning, this statute must be struck down. Kennedy v. Cumberland Eng'g Co., 471 A.2d 195, 1984 R.I. LEXIS 444 (1984).

Subsection (b) violates R.I. Const., art. 1, § 5 (remedies for wrongs). Burke v. Bayerische Motoren Werke Aktiengesellschaft, 471 A.2d 206, 1984 R.I. LEXIS 437 (1984).

Applicability.

Where contractor’s bond for labor and materials contained a clause stating that any action on the bond must be commenced within one year after the principal ceased work on the project the provision in the bond, rather than this section, governed. Vaudreuil v. Nelson Eng'g & Constr. Co., 121 R.I. 418 , 399 A.2d 1220, 1979 R.I. LEXIS 1794 (1979).

The appropriate residual statute for personal injury claims is § 9-1-14(b) , not § 9-1-13(a) . Paul v. City of Woonsocket, 745 A.2d 169, 2000 R.I. LEXIS 29 (2000).

Indian Tribe’s breach of fiduciary duty claims against a state, a city, and a town were barred by the 10-year limitation period of R.I. Gen. Laws . § 9-1-13 and therefore were dismissed; the Tribe’s claims were based on a reservation of rights memorialized in a 1661 deed. Those rights were extinguished by the Rhode Island Indian Claims Settlement Act, 25 U.S.C. § 1701 et seq., where the Tribe never filed a claim to the disputed land as required by the act, but waited over 20 years to initiate a lawsuit asserting rights to the land; this length of time clearly exceeded Rhode Island’s statute of limitations with respect to non-personal injury civil actions. Greene v. Rhode Island, 289 F. Supp. 2d 5, 2003 U.S. Dist. LEXIS 19532 (D.R.I. 2003), aff'd, 398 F.3d 45, 2005 U.S. App. LEXIS 2252 (1st Cir. 2005).

In an action for damages, a hearing justice did not abuse her discretion in determining that the ten-year statute of limitations of R.I. Gen. Laws § 9-1-13(a) was applicable because Rhode Island bore a more significant relationship than Massachusetts to the allegations set forth in the petitioner’s proposed amended complaint. Harodite Indus. v. Warren Elec. Co., 24 A.3d 514, 2011 R.I. LEXIS 109 (2011).

Trial court did not err in finding that the Rhode Island 10-year statute of limitations, rather than the Connecticut six-year limitations period, applied to a bank’s action for breach of a loan agreement secured by a mortgage on property located in Rhode Island. The trial court declined to enforce a Connecticut choice-of-law provision because Connecticut had very little relationship to the matter, and the trial court found that the relevant factors weighed in favor of applying Rhode Island law. Webster Bank, N.A. v. Rosenbaum, 268 A.3d 556, 2022 R.I. LEXIS 12 (2022).

— Accounts Between Merchants.

Accounts between partners are not within the exception which makes the statute inapplicable to accounts between merchant and merchant. Manchester v. Mathewson, 3 R.I. 237 , 1855 R.I. LEXIS 37 (1855).

Payments due for separate engineering surveys are not within the exceptions to this section as between merchants where debts were on one side only. Grady v. Siravo, 52 R.I. 233 , 159 A. 827, 1932 R.I. LEXIS 30 (1932).

— Alienation of Affections.

An action for alienation of affections is an action of the case other than for words spoken or for personal injuries so that it falls within this section. Senn v. Kogut, 79 R.I. 429 , 89 A.2d 842, 1952 R.I. LEXIS 68 (1952).

— Decedents’ Estates.

The statute may be invoked in proceedings before the commissioners of the insolvent estate of a decedent. Mason v. Taft, 23 R.I. 388 , 50 A. 648, 1901 R.I. LEXIS 154 (1901).

— Equity.

Where the jurisdiction of equity courts is concurrent with courts at law, the equity court is bound by the statute of limitations; and where the jurisdiction is not concurrent, equity applies the statute by way of analogy. Fussell v. Hennessy, 14 R.I. 550 , 1884 R.I. LEXIS 54 (1884).

The statute of limitations was effective to bar an equitable action by an heir to account for surplus money obtained from the sale of real estate by the mortgagee since the heir had an adequate remedy at law for money had and received. Reynolds v. Hennessey, 15 R.I. 215 , 2 A. 701, 1886 R.I. LEXIS 5 (1886).

Where fishermen worked on voyages from 1993 to 2000 under lay share contracts contravening 46 U.S.C.S. § 10601, a trial court, in applying the doctrine of laches to fashion a remedy under 46 U.S.C.S. § 11107, correctly chose R.I. Gen. Laws § 28-14-20 as the most analogous statute of limitations and barred claims older than three years, as § 28-14-20 covered wages and comported with the hospitable view taken toward seaman; moreover, the lay shares that the fishermen were paid were “wages” within the meaning of R.I. Gen. Laws § 28-14-1(4) , and the ten-year limitations period for contracts pursuant to R.I. Gen. Laws § 9-1-13(a) was too broad. Doyle v. Huntress, Inc., 513 F.3d 331, 2008 U.S. App. LEXIS 1436 (1st Cir. 2008).

— Insurance Policies.

The contracting parties to a policy of fire insurance may stipulate a different period of limitation than that which the statute imposes and such policy will govern the rights of the parties. Brown v. Roger Williams Ins. Co., 7 R.I. 301 , 1862 R.I. LEXIS 28 (1862).

An action against insurance company under uninsured motorist clause of policy by person who was a passenger in insured’s car was an action in contract subject to six year statute of limitation under this section and not barred by two year statute under § 9-1-14 although personal injury was basis for action. Pickering v. American Employers Ins. Co., 109 R.I. 143 , 282 A.2d 584, 1971 R.I. LEXIS 1035 (1971).

Three-year contractual limitations period in an uninsured/underinsured motorist (UM) benefits policy was enforceable because it was not void as against public policy; because R.I. Gen. Laws § 27-7-2.1 , which governed UM claims, was silent on the limitations period issue, the 10-year limitations period in R.I. Gen. Laws § 9-1-13(a) would bar some UM claims. Am. States Ins. Co. v. Laflam, 808 F. Supp. 2d 400, 2011 U.S. Dist. LEXIS 43899 (D.R.I. 2011).

Insurance policy provision requiring an insured seeking uninsured/underinsured motorist (UM/UIM) benefits to initiate legal action or make a written demand for arbitration within three years after the date of an accident was unenforceable as against public policy because the contractual limitations provision impermissibly restricted UM/UIM coverage by shortening the period in which a UM/UIM claim could be asserted from the ten-year statute of limitations and fixing a date on which that shortened period began to run that was earlier than the accrual date for the UM/UIM cause of action. Am. States Ins. Co. v. LaFlam, 69 A.3d 831, 2013 R.I. LEXIS 124 (2013).

— Malpractice.

An action for legal malpractice is governed by this statute (previously six years, now ten years) for civil actions not otherwise specifically provided for and does not qualify as a cause for “injuries to the person” under the three-year statute of limitations. Church v. McBurney, 513 A.2d 22, 1986 R.I. LEXIS 529 (1986).

— Personal Injuries.

The action by a plaintiff for an injury to his hand while operating a meat-cutting machine manufactured by the defendant was subject to the statute of limitations set forth in § 9-1-14(b) for “injuries to the person,” and not this section. Pirri v. Toledo Scale Corp., 619 A.2d 429, 1993 R.I. LEXIS 23 (1993).

— Products Liability Cases.

Where plaintiff sued manufacturer and dealer for property damage resulting from the explosion in 1970 of a television set purchased in 1964, the action constituted a strict liability action in tort and the limitation of action period prescribed by this section, and not the period prescribed by § 6A-2-725 , applied. Romano v. Westinghouse Elec. Co., 114 R.I. 451 , 336 A.2d 555, 1975 R.I. LEXIS 1437 (1975).

The 10-year period after the sale of an offending product does not create a new 10-year period to bring products liability suits but rather is an additional limit on suits brought within the previously existing statutes relating to the date of injury. Cadieux v. International Tel. & Tel. Corp., 593 F.2d 142, 1979 U.S. App. LEXIS 16752 (1st Cir. 1979).

— Securities.

Since the state uniform securities statute, chapter 11 of title 7, was not intended to supersede or replace common-law actions that might rely upon similar facts in seeking compensation for tortious acts committed by a broker or investment advisor, the plaintiff’s common-law claims for breach of fiduciary duty, negligence, and misrepresentation were subject to the 10 year general statute of limitations, not the one year permitted under § 7-11-606 . Levin v. Kilborn, 756 A.2d 169, 2000 R.I. LEXIS 144 (2000).

— Statutory Causes of Action.

This section does not apply to an action in equity upon the statutory liability of stockholders because such a liability is a specialty. Atwood v. Rhode Island Agric. Bank, 1 R.I. 376 , 1850 R.I. LEXIS 18 (1850).

Suit on patent is barred by six-year statute of limitations in the absence of a special statute on the matter by congress. Hayden v. Oriental Mills, 15 F. 605, 1883 U.S. App. LEXIS 1840 (C.C.D.R.I. 1883).

This section applied to a suit for damages under Selective Training and Service Act of 1940 (50 F.C.A., Appx. § 308) by an employee for failure of employer to reinstate him upon return from service, since congress has not designated the time to sue under the federal act. Delman v. Federal Products Corp., 136 F. Supp. 241, 1955 U.S. Dist. LEXIS 2402 (D.R.I. 1955), aff'd, 251 F.2d 123, 1958 U.S. App. LEXIS 3532 (1st Cir. 1958).

Where the thrust of plaintiffs’ complaint under 42 U.S.C. § 1983 was not that defendants had violated private obligations but rather that they had maliciously violated a duty, founded on social policy, not to interfere with the plaintiffs’ fourth amendment rights, the alleged injuries were personal injuries under Rhode Island law, and the limitations period of § 9-1-14 , rather than that of this section applied. Walden, III, Inc. v. Rhode Island, 576 F.2d 945, 1978 U.S. App. LEXIS 10866 (1st Cir. 1978).

Where purse agreements were negotiated between plaintiff horse owners and defendant race tracks to be effective on a year to year basis, the actions for breach of agreements of 1959 through 1962 were barred under the statute unless the plaintiffs established fraudulent concealment by the defendant. Berman v. New Hampshire Jockey Club, Inc., 324 F. Supp. 1156, 1971 U.S. Dist. LEXIS 14058 (D.N.H. 1971).

Where contract for sale of good will of medical practice stipulated that purchase price of practice would not be finalized until a certain date, plaintiff’s action to recover unpaid balance of purchase price, which commenced within six years next after the stipulated date, was not barred under this section. Winegar v. Earle, 108 R.I. 464 , 276 A.2d 468, 1971 R.I. LEXIS 1290 (1971).

In an action under Federal Securities Exchange Act of 1934 for misrepresentation and nondisclosure encompassing written documents and silence as well as oral statements, the controlling statute of limitations was provided by this section and not by the “words spoken” period of § 9-1-14 . Holmes v. Bateson, 434 F. Supp. 1365, 1977 U.S. Dist. LEXIS 15105 (D.R.I. 1977), aff'd in part and rev'd in part, 583 F.2d 542, 1978 U.S. App. LEXIS 9572 (1st Cir. 1978), disapproved, Ceres Partners v. GEL Assoc., 918 F.2d 349, 1990 U.S. App. LEXIS 19741 (2d Cir. 1990).

Although this state does not provide a limitation period specific to federal civil rights actions, an action for employment discrimination under 42 U.S.C. § 1981 is properly covered under § 9-1-14 rather than under this section, since § 9-1-14 covers injuries to personal dignity and is not limited to physical injury. Partin v. St. Johnsbury Co., 447 F. Supp. 1297, 1978 U.S. Dist. LEXIS 18919 (D.R.I. 1978).

In determining which state statute of limitations should govern a federal claim brought under 42 U.S.C. § 1983, allegations that plaintiffs were unlawfully harassed in various ways by state officials were in essence charges of “injury to the person” and therefore the three-year limitation of § 9-1-14 applied; and although the harassment also involved property damage, such damage was only incidental to the personal injuries allegedly suffered by plaintiffs, and did not suffice to characterize plaintiffs’ claim as a general civil action such as would be covered by this section. Walden III, Inc. v. Rhode Island, 442 F. Supp. 1168, 1977 U.S. Dist. LEXIS 12236 (D.R.I. 1977), aff'd, 576 F.2d 945, 1978 U.S. App. LEXIS 10866 (1st Cir. 1978).

The University of Rhode Island, through its “Regulations Defining Resident and Non-Resident students at the University of Rhode Island,” entered into a contract with URI students by which URI was to determine whether a student qualified for residency status (and thus, lower tuition rates), and where URI and its president and employees allegedly breached this contract by applying the regulations to a student plaintiff in an arbitrary and capricious manner, the applicable statute of limitations is that set forth in subsection (a) of this section for purposes of a civil rights claim under 42 U.S.C. § 1983. Vanlaarhoven v. Newman, 564 F. Supp. 145, 1983 U.S. Dist. LEXIS 17586 (D.R.I. 1983).

Subsection (a) is the appropriate statute of limitations for a federal Racketeer Influenced and Corrupt Organization Act (RICO) action brought in the federal district court in Rhode Island. Martin v. Fleet Nat'l Bank, 676 F. Supp. 423, 1987 U.S. Dist. LEXIS 12420 (D.R.I. 1987).

The state Racketeer Influenced and Corrupt Organizations Act contains no specific period of limitations; it can therefore be assumed that the general six-year (now ten-year) limitation for civil actions governs. Boyajian v. DeFusco, 862 F.2d 933 (1st Cir. 1988).

Property owners’ action against a builder for breach of an implied warranty of reasonable workmanship and habitability alleged a cause of action based on a contract theory, and was therefore governed by the statute of limitations set out in subsection (a), rather than the statute of limitations set out in § 9-1-29 . Boghossian v. Ferland Corp., 600 A.2d 288, 1991 R.I. LEXIS 180 (1991).

Rhode Island’s ten (10) year statute of limitations, R.I. Gen. Stat. § 9-1-13(a) was the most analogous statute of limitations and was applied to a deck hands’ claims for unpaid wages under 46 U.S.C. § 10601 and 46 U.S.C. § 11107 where the deck hands’ claims did not arise from personal injuries, but, rather, were in the nature of a statutory wage claim. Doyle v. Huntress, Inc., 301 F. Supp. 2d 135, 2004 U.S. Dist. LEXIS 1219 (D.R.I. 2004), aff'd, 419 F.3d 3, 2005 U.S. App. LEXIS 16905 (1st Cir. 2005).

Accrual of Cause of Action.

Court applied federal common law to determine when a federal securities action accrued and ruled that the applicable statute of limitations did not run while the fraud remained concealed but began to run when the plaintiff received the accrual statements which revealed the true value of the business. Holmes v. Bateson, 583 F.2d 542, 1978 U.S. App. LEXIS 9572 (1st Cir. 1978).

Payees’ action for conversion of fraudulently endorsed check was governed by general rule that in absence of fraud by those invoking the statute of limitations, a cause of action accrues at the time defendant wrongfully exercises dominion, regardless of plaintiff’s ignorance. Fuscellaro v. Industrial Nat'l Corp., 117 R.I. 558 , 368 A.2d 1227, 1977 R.I. LEXIS 1726 (1977).

Payees’ cause of action for money had and received against collecting bank for cashing a fraudulently endorsed check accrued at the time the check was cashed, not when payees discovered the forgery. Fuscellaro v. Industrial Nat'l Corp., 117 R.I. 558 , 368 A.2d 1227, 1977 R.I. LEXIS 1726 (1977).

Where the claim of plaintiff stockbrokerage firm was for restitution of an overpayment to defendant, plaintiff’s right of action accrued and the statute began to run when plaintiff completed the sale of stocks and credited defendant’s account. Jonklaas v. Silverman, 117 R.I. 691 , 370 A.2d 1277, 1977 R.I. LEXIS 1740 (1977), overruled in part, Fitzgerald v. O'Connell, 120 R.I. 240 , 386 A.2d 1384, 1978 R.I. LEXIS 663 (1978).

No Rhode Island case holds that a cause of action does not accrue until the plaintiff both discovers his injury and identifies the party responsible for the injury. Swiss v. Eli Lilly & Co., 559 F. Supp. 621, 1982 U.S. Dist. LEXIS 10000 (D.R.I. 1982).

A products liability action against a drug manufacturer accrues under Rhode Island law only after the plaintiff has or reasonably should have knowledge of the manufacturer’s wrongdoing. Castrignano v. E.R. Squibb & Sons, Inc., 900 F.2d 455, 1990 U.S. App. LEXIS 5115 (1st Cir. 1990).

Tenant’s action against a city treasurer accrued for statute-of-limitations purposes on the date when the tenant’s lawful possession of the premises terminated under its original lease with the city and a lease extension was to begin, and not on the date the city council authorized the mayor to sign the lease extension. Blue Ribbon Beef Co. v. Napolitano, 585 A.2d 67, 1991 R.I. LEXIS 7 (1991).

Property owners’ cause of action against a builder for breach of an implied warranty of reasonable workmanship and habitability began to accrue when the owners first became aware of alleged defective soil preparation. Boghossian v. Ferland Corp., 600 A.2d 288, 1991 R.I. LEXIS 180 (1991).

The tort of intentional interference with a contract is not an “injury to person” and thereby is not subject to the three year statute of limitation; but, rather, is a property interest created by a contract and is thus subject to a ten-year statute of limitations. Thus, plaintiff, an attorney, could maintain a suit against defendant, another attorney, for interference with a contractual relationship. McBurney v. Roszkowski, 687 A.2d 447, 1997 R.I. LEXIS 1 (1997).

In a suit brought by a decedent’s widow and daughter alleging that entertainment companies misappropriated the decedent’s theme park idea in 1962 and opened an identical theme park to the public in 1982, plaintiffs’ conversion, fraud, and quantum meruit claims were time-barred and the companies did not conceal a cause of action from plaintiffs or the decedent. Waters v. Walt Disney World Co., 237 F. Supp. 2d 162, 2002 U.S. Dist. LEXIS 26235 (D.R.I. 2002).

— Bailment.

In the case of a gratuitous bailment for an indefinite period the statute of limitations does not start to run on a conversion by the bailee until a demand by the bailor after notice and knowledge of the conversion. Lowney v. Knott, 83 R.I. 505 , 120 A.2d 552, 1956 R.I. LEXIS 8 (1956).

— Charge on Real Estate.

A trust or charge created by a will upon real estate for the payment of debts prevents the statute from running against such debts as were not barred in the testator’s lifetime. Woonsocket Inst. for Sav. v. Ballou, 16 R.I. 351 , 16 A. 144, 1888 R.I. LEXIS 63 (1888).

Where the effect of a devise was to secure the performance of a duty by a charge on two-thirds of the real estate devised, the duty to continue until such time as a party should have become able to support himself, such duty constituted a continuing duty and would be a continuing charge so long as the duty continued. Dodge v. Hogan, 19 R.I. 4 , 31 A. 1059, 1894 R.I. LEXIS 93 (1894).

— Decedents’ Estates.

Heirs of real estate of an insolvent estate may set up the statute as a bar to an action by a creditor of the estate and the creditor may not avoid on the grounds that he was appointed administrator before the expiration of the six-year period, since he could have presented his claim to the commissioners appointed to examine the claims of the insolvent estate. Fenner v. Manchester, 6 R.I. 140 , 1859 R.I. LEXIS 21 (1859).

The general statute of limitations limiting actions in assumpsit to six years began to run against a claim for burial expenses as soon as the original administratrix was qualified as such by the filing of her bonds despite the provision that the special statute for executors and administrators does not begin to run until notice of qualification. Knowles v. Whaley, 15 R.I. 97 , 23 A. 144, 1885 R.I. LEXIS 69 (1885).

Trial court properly determined a claim by a decedent’s heirs against the executor of the estate for breach of fiduciary duty was time-barred by the ten-year statute of limitations set forth in R.I. Gen. Laws § 9-1-13 because the heirs filed their complaint in 2009 and all the facts used to support the allegations of breach of fiduciary duty allegedly occurred between February 3, 1976, and May 1987. Mendes v. Factor, 41 A.3d 994, 2012 R.I. LEXIS 51 (2012).

— Defective Deed.

The cause of action by a person who purchased real estate from a guardian and was given a deed which was a nullity accrued at the time the purchase money was paid, since he was entitled to have his money refunded at that time, even though the ward did not disaffirm the transfer until some years later. Furlong v. Stone, 12 R.I. 437 , 1879 R.I. LEXIS 49 (1879).

— Mutual Accounts.

The rule of mutual accounts is to the effect that in cases of mutual dealings between parties no obligation is created in regard to each particular item but only for balance, and it is the constantly varying balance which is the debt, so that the statute only begins to run from the date of the last item. Cargill v. Atwood, 18 R.I. 303 , 27 A. 214, 1893 R.I. LEXIS 26 (1893).

Payments due for separate engineering surveys are not within the exceptions to this section as a mutual account where debts were on one side only. Grady v. Siravo, 52 R.I. 233 , 159 A. 827, 1932 R.I. LEXIS 30 (1932).

— Notice or Demand.

The statute does not begin to run against premium notes given to an insurance company and payable at such times and in such instalments as the company should assess and order until such assessment has been made. In re Slater Mut. Fire Ins. Co., 10 R.I. 42 , 1871 R.I. LEXIS 9 (1871).

Statute of limitations would not begin to run on note requiring two months’ notice by creditor until two months after notice could have been given. Palma v. Notarianni, 52 R.I. 61 , 157 A. 422, 1931 R.I. LEXIS 106 (1931).

— Partnerships.

As between partners the statute does not begin to run until the partnership is dissolved or until there is an exclusion of one partner by the other. Philip Allen & Sons v. Woonsocket Co., 11 R.I. 288 , 1876 R.I. LEXIS 8 (1876).

— Products Liability Cases.

Where plaintiff sued manufacturer and dealer for property damage resulting from the explosion in 1970 of a television set purchased in 1964, the statute of limitations began to run when the damage was sustained. Romano v. Westinghouse Elec. Co., 114 R.I. 451 , 336 A.2d 555, 1975 R.I. LEXIS 1437 (1975).

— Real Property.

With respect to improvements to real property, the statute begins to run when the evidence of injury to property is sufficiently significant to alert the injured party to the possibility of a defect. Lee v. Morin, 469 A.2d 358, 1983 R.I. LEXIS 1121 (1983).

— Usury.

Because the cause of action for criminal usury under §§ 6-26-3 and 9-1-2 accrued in December 2000, and the complaint was not filed until April 2011, the borrowers’ claims were barred by the 10-year statute of limitations; the predicate conduct on which the borrowers relied in asserting their claims occurred when the lenders executed the loan documents at issue that backdated and charged the retroactive usurious interest rates. Commerce Park Realty, LLC v. HR2-A Corp., 253 A.3d 868, 2021 R.I. LEXIS 85 (R.I. 2021).

Acknowledgment of Debt.

Virtually any acknowledgment of an existing debt tolls the running of the statute of limitations. In re Giorgio, 62 B.R. 853, 1986 Bankr. LEXIS 5757 (Bankr. D.R.I. 1986).

Alternative Remedies.

The fact that a personal action on a promissory note is barred by the statute of limitations does not defeat the right of the mortgagee to his remedy upon the mortgage. Ballou v. Taylor, 14 R.I. 277 , 1883 R.I. LEXIS 59 (1883).

Commencement of Action.

An action is commenced when writ of arrest is issued, so that statute is no bar if writ issued before six-year period but was not served until after such period. Hail v. Spencer, 1 R.I. 17 , 1925 R.I. LEXIS 1 (1925).

Computation of Period.

The period during which a creditor is prevented by the bankruptcy laws from suing should be excluded in computing the period of limitations. Hill v. Phillips, 14 R.I. 93 , 1883 R.I. LEXIS 9 (1883).

A note “to be paid at any time” given with the understanding that the payee would not demand payment as long as she lived in the home of the makers was not barred by prior six year statute of limitations where suit was commenced within six years after her removal from the home of the makers. Di Battista v. Butera, 104 R.I. 465 , 244 A.2d 857, 1968 R.I. LEXIS 667 (1968).

Employer Drug Testing Statute.

Violations of the employer drug testing statute (EDTS), § 28-6.5-1 , result in “injuries to the person” as contemplated by the three-year statute of limitations and, accordingly, are subject to the three-year period in § 9-1-14 rather than the 10-year period in this section; moreover, actions under § 9-1-2 for civil liability for the victims of criminal offenses, which would include the misdemeanor offense created by the EDTS, are also subject to the three-year statute of limitations. Because an employee filed her action more than three years after the alleged violation of the EDTS, the claims were time-barred. Goddard v. APG Security-RI, LLC, 134 A.3d 173, 2016 R.I. LEXIS 34 (2016).

Federal ERISA Actions.

Since § 28-8-1 presents the most analogous cause of action under Rhode Island law to an ERISA action to compel contributions to a pension fund, and since § 28-8-1 does not provide for a limitations period, the 10-year statute of limitations in subsection (a) for contract actions would govern an action under § 28-8-1 and is thus the statute of limitations period for ERISA claims in Rhode Island. Trustees of the Local Union No. 17 Sheet Metal Workers' Apprenticeship Fund v. May Eng'g Co., 951 F. Supp. 346, 1997 U.S. Dist. LEXIS 635 (D.R.I. 1997).

When a deceased employee’s widow and the employee’s estate sued the employee’s former employer for breach of contracts to provide health and life insurance and pension benefits, the claims were time-barred because (1) the claims were not filed within ten years of the employer’s answer to plaintiffs’ counsel’s latest letter, and (2) the husband’s “unsound mind” did not toll this time, under R.I. Gen. Laws § 9-1-19 , as the husband’s inability to manage the husband’s daily affairs during the relevant period was not shown. Estate of Frusher v. Abt Assocs., 643 F. Supp. 2d 220, 2009 U.S. Dist. LEXIS 73233 (D.R.I. 2009).

Laches.

The defense of laches may be asserted in civil actions seeking equitable relief notwithstanding the fact that the period fixed by the applicable statute of limitation has not expired. Fitzgerald v. O'Connell, 120 R.I. 240 , 386 A.2d 1384, 1978 R.I. LEXIS 663 (1978).

It is only where unexplained and inexcusable delay has the effect of visiting prejudice on the other party that the defense of laches may be successfully invoked. Fitzgerald v. O'Connell, 120 R.I. 240 , 386 A.2d 1384, 1978 R.I. LEXIS 663 (1978).

The fact that the value of property has appreciated since the contract to convey the property was entered into does not in and of itself convert delay into laches. Fitzgerald v. O'Connell, 120 R.I. 240 , 386 A.2d 1384, 1978 R.I. LEXIS 663 (1978).

The defense of laches does not apply where a delay is induced or caused by the adverse party, as by acknowledging the justness of the claim and promising to make good thereon. Fitzgerald v. O'Connell, 120 R.I. 240 , 386 A.2d 1384, 1978 R.I. LEXIS 663 (1978).

New Promise.

A creditor must show an express new promise by the debtor or facts from which such promise can be clearly inferred to avoid application of the statute. Reed v. Johnson, 1 R.I. 81 , 1888 R.I. LEXIS 1 (1888).

The court will infer a new promise to pay from the acknowledgment of an existing debt. Shaw v. Newell, 2 R.I. 264 , 1852 R.I. LEXIS 32 (1852).

The filing of a schedule of debts by the defendant with his petition for the benefit of the insolvent law does not raise a new promise to pay a debt already barred by the statute. Hidden v. Cozzens, 2 R.I. 401 , 1853 R.I. LEXIS 6 (1853).

A promise to “pay him something on account in a few days, if he would wait for him” was sufficient to take the debt out of the statute. Wilcox v. Clarke, 18 R.I. 324 , 27 A. 219, 1893 R.I. LEXIS 28 (1893).

A promise to pay in instalments a debt barred by the statute of limitations is a qualified promise and hence, the creditor whose debt is barred cannot avail himself of such a promise to sue on a debt until a breach of the promise has occurred. Wiley v. Brown, 18 R.I. 615 , 30 A. 464, 1894 R.I. LEXIS 71 (1894).

A replication to plea of statute of limitations which stated “that the said defendant within six years next before the commencement of this suit undertake and promise” pointed to a new promise rather than to reliance on the note in its original form. Quincy v. Blanchard, 36 R.I. 296 , 90 A. 209, 1914 R.I. LEXIS 25 (1914).

A conditional promise to pay will not take the case out of the statute unless the condition is met. La France v. Moquin, 49 R.I. 151 , 141 A. 307, 1928 R.I. LEXIS 26 (1928).

Where there was adequate evidence to support the trial justice’s finding that there was a continuing acknowledgment that defendants were obligated to repay the money as a personal loan, the statute-of-limitations defense was without merit. Rodriques v. Santos, 466 A.2d 306, 1983 R.I. LEXIS 1097 (1983).

— Evidence of Promise.

In suit in 1909 on a promissory note executed in 1888 on which payments were indorsed by plaintiff in 1890, 1907 and 1908, letters of defendant written in 1907 and 1908 were admissible in evidence as to whether there was a new promise to pay, but letter written in 1890 was admissible only on the amount of the note. Quincy v. Blanchard, 36 R.I. 296 , 90 A. 209, 1914 R.I. LEXIS 25 (1914).

— Jury Question.

In action on promissory note where defendant pleaded statute of limitations, the date of last interest payment was a question of fact for jury. Stedman v. Hinman, 67 R.I. 123 , 21 A.2d 10, 1941 R.I. LEXIS 80 (1941).

Whether decedent had made new promise to pay bill was for the jury where there was evidence of oral promise and such testimony was open to different interpretations. Sharp v. Rhode Island Hosp. Trust Co., 68 R.I. 248 , 27 A.2d 323, 1942 R.I. LEXIS 67 (1942).

— Partial Payment.

Partial payment of a debt is prima facie evidence from which a new promise to pay can be inferred, but circumstances may rebut the inference, still leaving the debt within the statute. Reed v. Johnson, 1 R.I. 81 , 1888 R.I. LEXIS 1 (1888).

In order for a partial payment on an account to be considered a new promise and therefore take the claim out of the statute, it must appear that the payment was made in recognition of the unpaid balance due. Campbell v. Collingwood, 15 R.I. 472 , 8 A. 695, 1887 R.I. LEXIS 18 (1887).

— Promise by Another.

Partial payment of a debt by assignee for benefit of creditors does not constitute a new promise so as to take the debt out of the statute, since such an assignee is not an agent of the debtor but a common trustee for all creditors. Reed v. Johnson, 1 R.I. 81 , 1888 R.I. LEXIS 1 (1888).

After dissolution of a partnership, one partner’s compromise or composition of a debt does not renew the original promise of the other partners so as to take the debt out of the statute as to them. Turner & Salisbury v. Ross, 1 R.I. 88 , 1888 R.I. LEXIS 2 (1888).

An indorser of a note who stands in the position of a joint maker is bound by all acknowledgments of the debt by the maker in the form of promises and part payments. Perkins v. Barstow, 6 R.I. 505 , 1860 R.I. LEXIS 24 (1860).

A new promise by the maker of a promissory note after the statute of limitations has commenced to run does not revive the note as against the guarantor. Browning v. Tucker, 9 R.I. 500 , 1870 R.I. LEXIS 14 (1870).

A payment on a joint note by one of the joint debtors prevents the statute from running against any of the joint debtors whether or not they had authorized such payment. Woonsocket Inst. for Sav. v. Ballou, 16 R.I. 351 , 16 A. 144, 1888 R.I. LEXIS 63 (1888).

Statute of limitations was prevented from running as to joint maker of note by his payment of overdue interest with funds of co-maker and on co-maker’s behalf. Industrial Trust Co. v. Arabian, 67 R.I. 355 , 23 A.2d 751, 1942 R.I. LEXIS 1 (1942).

Parties Entitled to Assert Statute.

An action by a lender against a borrower and his accountant for fraud in an accounting statement prepared by the accountant and supplied by the borrower to the lender in order to obtain a loan is governed by this section. Rusch Factors, Inc. v. Levin, 284 F. Supp. 85, 1968 U.S. Dist. LEXIS 7731 (D.R.I. 1968).

When, acting in behalf of the state, the attorney-general deems it his duty to prosecute for a forfeiture, it is not for the court, in the absence of any statutory limitations, to say he is too late. State v. Pawtuxet Turnpike Corp., 8 R.I. 521 , 1867 R.I. LEXIS 12 (1867).

Creditor of an insolvent decedent’s estate could interpose the statute of limitations to the allowance of a claim, such defense being one which the executor or administrator could interpose. Mason v. Taft, 23 R.I. 388 , 50 A. 648, 1901 R.I. LEXIS 154 (1901).

Pleadings.

Where defendant pleaded the statute of limitations, but to his plea no replication was filed and a jury returned a general verdict for plaintiff without any findings on the special pleas, the defendant evidently waived the want of a replication to his plea and the jury on that plea found that the cause of action did accrue within six years. Almy v. Daniels, 15 R.I. 312 , 4 A. 753, 1886 R.I. LEXIS 25 (1886).

Summary Judgment.

The defendant’s request for summary judgment on the basis that the plaintiff ’s claim was time-barred was denied since the plaintiff and the defendant had each presented a set of facts which supported their argument regarding the date of accrual of the plaintiff ’s cause of action, which facts contradicted each other. Demirs v. Plexicraft, Inc., 781 F. Supp. 860, 1991 U.S. Dist. LEXIS 19063 (D.R.I. 1991).

Trial justice properly found that no material issues of fact existed concerning whether a half-sister should have known about the existence of a fraud cause of action more than 10 years before she filed her counterclaim. Carney v. Kardinal Land, Inc., 813 A.2d 50, 2003 R.I. LEXIS 3 (2003).

Collateral References.

Acceleration provision as affecting running of limitations. 34 A.L.R. 897; 161 A.L.R. 1211.

Acceptance of past-due interest as waiver precluding acceleration which will institute limitations period. 97 A.L.R.2d 997.

Acceptance of past-due interest, default in payment of which accelerates maturity of note or mortgage, as suspending statute of limitations. 97 A.L.R.2d 997.

Accommodation party’s action against accommodated party for reimbursement as affected by bar of action on accommodation paper. 36 A.L.R. 583; 77 A.L.R. 668.

Account, payment on, as removing or tolling statute of limitation. 36 A.L.R. 346; 156 A.L.R. 1082.

Accountability of co-tenants for rents and profits or use and occupation as affected by statute of limitations. 51 A.L.R.2d 388.

Accrual of action, for limitation purposes, against liability insurer for failure to settle claim or action against insured. 68 A.L.R.2d 892.

Accrual of cause of action against one putative spouse by other for wrongfully inducing entry into or cohabitation under illegal, void or nonexistent marriage. 72 A.L.R.2d 956.

Accrual of claims for continuing trespass or continuing nuisance for purposes of statutory limitations. 14 A.L.R.7th Art. 8 (2016).

Acknowledgment or new promise as affecting running of limitations on account stated. 51 A.L.R.2d 331.

Acknowledgment or promise to pay as affecting running of statute of limitations. 45 A.L.R.2d 967.

Action by one secondarily liable on negotiable instrument against principal as action on such instrument, or on implied promise, or otherwise within limitation statute. 140 A.L.R. 888; 143 A.L.R. 1062.

Adverse possession: owner’s surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse possession. 76 A.L.R.3d 1202.

Affirmative relief from debt or lien, statute of limitation as ground for. 164 A.L.R. 1387.

Agent, necessity of demand to start limitations running against action by principal to recover money or other property from. 141 A.L.R. 376.

Agreement of parties as estopping reliance on statute of limitations. 43 A.L.R.3d 756.

Agreement to pay when financial condition of business permits. 99 A.L.R. 1523.

Anticipatory breach of executory contract as starting statute of limitations. 94 A.L.R. 455.

Applicability of limitation statute to action on bonds of public body or an obligation to collect revenues for their payment. 38 A.L.R.2d 930.

Applicability of statute of limitations or doctrine of laches to proceeding to revoke or suspend license to practice medicine. 51 A.L.R. 4th 1147.

Applicability of statute of limitations to action under 31 U.S.C. § 192 imposing personal liability on fiduciary for paying debts due by person or estate for whom he acts before paying debts due the United States. 41 A.L.R.2d 466.

Applicability of statute of limitations to equitable proceedings for relief from usurious obligation. 48 A.L.R.2d 410.

Application of general statutes of limitation to impeachment of arbitration award. 85 A.L.R.2d 794.

Application of limitation prescribed by policy of insurance or by statutory provision in relation to insurance, of provisions of statute of limitations extending time or fixing time when action deemed commenced. 23 A.L.R. 97; 149 A.L.R. 483.

Application of limitation statute to nonderivative suits based on wrongs of corporate officers or directors. 174 A.L.R. 1217.

Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action — Construction cases. 104 A.L.R.6th 1.

Application of statute of limitations or laches to quo warranto proceedings. 26 A.L.R.2d 828.

Appointment of guardian for infant as affecting running of statute of limitations against ward. 86 A.L.R.2d 965.

Arbitration: statute of limitations as bar to arbitration under agreement. 94 A.L.R.3d 533.

Assumption of debt, availability of statute, and time when it begins to run, where one assumes and agrees to pay another’s debt. 31 A.L.R. 1056.

Attorney employed on contingent fee, who was discharged or withdrew before determination of litigation or other event upon which his compensation was contingent, when statute of limitations commences to run against action by. 118 A.L.R. 1281.

Attorney malpractice-tolling or other exceptions to running of statute of limitations. 87 A.L.R.5th 473.

Authority of agent to make payment on behalf of principal, as regards statute of limitations. 31 A.L.R.2d 139.

Authority to contract for another, when statute of limitations commences to run against one who has misrepresented or exceeded. 64 A.L.R. 1194.

Authority, when limitations commence to run against action against corporate officer who has misrepresented or exceeded. 64 A.L.R. 1195.

Automobile insurance: time limitations as to claims based on uninsured motorist clause. 28 A.L.R.3d 580.

Bank directors or officers, action against, for making excessive or unauthorized loan. 83 A.L.R. 1204.

Bank officers and directors, when limitation commences to run against action to enforce personal liability of, for receiving deposits after knowledge of bank’s unsafe condition. 78 A.L.R. 897.

Bank’s statement of balance to depositor’s credit as starting statute of limitations in respect to amount claimed in excess of balance shown. 87 A.L.R. 344.

Bastardy proceedings. 155 A.L.R. 1144.

Birth control: when statute of limitations begins to run against malpractice action in connection with sterilization or birth control procedures. 93 A.L.R.3d 218.

Bringing in new party after statute of limitations has run. 8 A.L.R.2d 6.

Building contracts: what statute of limitations governs action by contractee for defective or improper performance of work by private building contractor. 1 A.L.R.3d 914.

Bulk sales law, claim barred by statute of limitations as within. 84 A.L.R. 1418; 85 A.L.R. 1211; 85 A.L.R.2d 1211.

Causes of action governed by limitations period in UCC § 2-725. 49 A.L.R.5th 1.

Certificate of deposit, statute of limitations as applied to. 23 A.L.R. 7; 128 A.L.R. 157.

Check in payment of interest or instalment of principal as an acknowledgment sufficient to take case out of statute of limitations. 28 A.L.R. 84; 125 A.L.R. 271.

Check, when statute of limitations begins to run in favor of drawer of. 4 A.L.R. 881.

Choice of law as to applicable statute of limitations in contract actions. 78 A.L.R.3d 639.

Civil action for seduction, when statute of limitations commences to run against. 3 A.L.R. 155.

Commencement of running of statute of limitations respecting actions by owners of right of re-entry, or actions against third persons by reversioners. 19 A.L.R.2d 729.

Contract in writing within statute of limitations, what constitutes. 3 A.L.R.2d 809.

Contract, when action considered to be one on, rather than one for, fraud, as regards running of limitations. 114 A.L.R. 525.

Contractor’s bond, construction of provision in, as to time when action may be brought by laborers or materialmen. 119 A.L.R. 255.

Debtor’s restrictive language accompanying part payment as preventing interruption of statute of limitations. 10 A.L.R.4th 932.

Delay as defense to action for accounting between joint adventurers. 13 A.L.R.2d 765.

Delay in bringing divorce suit. 4 A.L.R.2d 1321.

Delay in seeking relief, on ground of undue influence, against nontestamentary gift to clergyman, spiritual adviser, or church. 14 A.L.R.2d 649.

Deposit of money without definite date for its return, when limitation commences to run against action to recover, or damages for detention. 57 A.L.R.2d 1044.

Design defect: validity and construction, as to claim alleging design defects, of statute imposing time limitations upon action against architect or engineer for injury or death arising out of defective or unsafe condition of improvement to real property. 93 A.L.R.3d 1242.

Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action. 15 A.L.R.2d 578.

Effect of infant’s marriage after cause of action accrues on running of limitations against him. 91 A.L.R.2d 1272.

Employee’s breach of agreement regarding discharge or restoration after layoff of employee not employed for fixed term as creating a single cause of action or repeated causes of action, as regards statute of limitations. 142 A.L.R. 797.

Encroachment: when does cause of action accrue, for purposes of statute of limitations, against action based upon encroachment of building or other structure upon land of another. 12 A.L.R.3d 1265.

Entry or indorsement by creditor on note, bond, or other obligation as evidence of part payment which will toll the statute of limitations. 23 A.L.R.2d 1331.

Exceptions as regards causes of actions cognizable at law, to general rule excepting express trusts from operation of statute of limitations, scope and application of. 122 A.L.R. 286.

Federal crop loans, applicability of limitation statute to suits on. 1 A.L.R.2d 712.

Federal Employers’ Liability Act: accrual of cause of action and tolling of limitation period of § 6 of the Federal Employers’ Liability Act (45 USC § 56). 16 A.L.R.3d 637.

Fraud: when statute of limitations begins to run against criminal prosecution for embezzlement, fraud, false pretenses, or similar crimes. 77 A.L.R.3d 689.

General acknowledgment or promise in statement addressed to public as removing bar of limitation. 8 A.L.R. 1258.

Guarantor, acknowledgment or new promise by principal as tolling limitation against. 84 A.L.R. 729.

Husband’s or wife’s acknowledgment or new promise as tolling statute of limitations against obligation of community. 47 A.L.R. 548.

Identification of part payment with the particular debt in question, necessity and sufficiency of, for purposes of tolling or removing bar of, statute of limitations. 142 A.L.R. 389.

Illegitimacy: statutes of limitations in illegitimacy or bastardy proceedings. 59 A.L.R.3d 685.

Indorsement of paper upon which prior indorsement was forged, when statute of limitations commences to run in favor of. 117 A.L.R. 1164.

Insolvency of corporate debtor, acknowledgment after, as affecting limitation. 78 A.L.R. 638.

Instalments, debt payable in, statute of limitations as affecting suit to enforce lien securing. 153 A.L.R. 790.

Instalments, when limitations begin to run against action to recover contract payable in. 82 A.L.R. 316.

Insurance policies as within provisions applicable to contracts in writing. 3 A.L.R.2d 809.

Insurance policy pledged to secure debt of insured, effect on rights as between beneficiary of, and pledgee, after death of insured, of running of limitations against the debt. 83 A.L.R. 80; 160 A.L.R. 1389.

Insurer’s denial of liability as suspending running of statute of limitations. 171 A.L.R. 577.

Interest, effect as regards, or acknowledgment or new promise which takes case out of statute of limitations as regards principal. 78 A.L.R. 959.

Interest, right to recover, as affected by bar of limitations against action to recover principal of obligation. 115 A.L.R. 728.

Joint tortfeasors: what statute of limitations applies to action for contribution against joint tortfeasor. 57 A.L.R.3d 927.

Labor matters: period of limitations or laches to be applied under 29 USC §§ 185, 187, in action for breach of labor contract or damages from unfair labor practice. 19 A.L.R.3d 1034.

Laches or acquiescence as defense, so as to bar recovery of arrearages of permanent alimony or child support. 5 A.L.R.4th 1015.

Legal malpractice by permitting statutory time limitation to run against client’s claim. 90 A.L.R.3d 293.

Liability for injury or death allegedly caused by foreign substance in beverage. 90 A.L.R.4th 12.

Liability for injury or death allegedly caused by spoilage or contamination of beverage. 87 A.L.R.4th 804.

Liability insurance, limitation of time within which to sue insurer. 83 A.L.R. 748.

Liability on statutory bond as within statute of limitations prescribing specific limitation period for liabilities created by statute. 32 A.L.R.2d 1240.

Libel and slander: what constitutes “publication” of libel in order to start running of period of limitations. 42 A.L.R.3d 807.

Limitation of actions as to slander of title based on recording of instrument purporting to affect title. 39 A.L.R.2d 840.

Limitation of actions for annulment of marriage. 52 A.L.R.2d 1163.

Limitation of actions to enforce accountability of cotenant for rents and profits or use and occupation. 51 A.L.R.2d 388.

Limitation of matrimonial action as affected by Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended. 54 A.L.R.2d 416.

Limitation period as affected by requirement of notice or presentation of claim against governmental body. 3 A.L.R.2d 711.

Loss of services of child, spouse, or servant, or consortium of spouse, through another’s wrongful act, when statute of limitations begins to run against. 173 A.L.R. 750.

Mechanics’ lien, failure to raise by demurrer or answer failure to bring suit to enforce, within time prescribed, as waiver. 93 A.L.R. 1462.

Medical malpractice: Who are “Health care providers‘ or the like, whose actions fall within statutes specifically governing actions and damages for medical malpractice. 12 A.L.R. 5th 1.

Mistake: when statute of limitations begins to run against action to recover money paid by mistake. 79 A.L.R.3d 754.

Modern status of the application of “discovery rule” to postpone running of limitations against actions relating to breach of building and construction contracts. 33 A.L.R.5th 1.

Moral obligation to pay debt barred by limitation as consideration for executory promise. 17 A.L.R. 1333; 79 A.L.R. 1346; 8 A.L.R.2d 787.

Mortgage as contract in writing within meaning of statute. 3 A.L.R.2d 809.

Mortgagee’s possession before foreclosure, commencement of limitations as barring right of redemption. 7 A.L.R.2d 1131.

Municipality, when limitations commence to run as to action against, for damages to riparian premises by pollution of stream by discharge of sewage. 122 A.L.R. 1509.

Municipality’s wrongful pollution of stream, time when statute of limitations begins to run against action for. 75 A.L.R. 536.

Mutual account: when is account “mutual” for purposes of rule that limitations run from last item in open, current, and mutual account. 45 A.L.R.3d 446.

Necessity and sufficiency, in order to toll statute of limitations as to debt, of statement of amount of debt in acknowledgment or new promise to pay. 21 A.L.R.4th 1121.

Negligence, amendment of pleading after limitation period by changing from allegation of, to allegation of fraud, or vice versa. 141 A.L.R. 1363.

Negligent design: when statute of limitations begins to run on negligent design claim against architect. 90 A.L.R.3d 507.

Nuisance by sewage disposal plant as affected by limitations. 40 A.L.R.2d 1177.

Option or right in nature of option exercisable on demand, commencing of running of limitations against. 132 A.L.R. 429.

Overflow of land caused by artificial construction or obstruction, when limitation commences to run against right of action for damages. 5 A.L.R.2d 302.

Part payment as affecting running of limitations on account stated. 51 A.L.R.2d 380.

Payment by obligor on note or other instrument containing warrant of attorney to confess judgment as extending time within which power to confess may be exercised. 35 A.L.R.2d 1452.

Payment by one of two or more joint or joint and several debtors as suspending or tolling limitation. 74 A.L.R.2d 1287.

Permanent injury to real property, rule that limitation begins to run when conditions causing, are created or when permanent character of injury becomes obvious, as affecting later increase or change in nature of damages. 126 A.L.R. 1284.

Pleading or attempting to prove by way of setoff, counterclaim or recoupment, related claim barred by statute of limitations as waiver of defendant’s plea of limitation against plaintiff’s claim. 137 A.L.R. 324.

Pledge as a trust as regards statute of limitations. 139 A.L.R. 1333.

Pledge, bar of statute of limitations against debt secured by, as affecting rights and remedies in respect to subject of pledge. 103 A.L.R. 430; 137 A.L.R. 928.

Pollution of stream by municipality, statute of limitations as barring recovery of damages for, accruing within the statutory period. 75 A.L.R. 536.

Post dated check, when deemed acknowledgment for purposes of statute of limitations in action on original obligation. 150 A.L.R. 858.

Presumption of payment from lapse of time and limitation statutes, distinguished. 1 A.L.R. 780.

Products liability: Liability of manufacturer, supplier, or seller of passenger or freight elevator, hoist, or elevator component for injury or damage resulting from alleged defect in elevator or component. 117 A.L.R.5th 267.

Promise to pay debt conditioned upon future act of creditor as tolling statute of limitations. 143 A.L.R. 1429.

Promise to pay part of obligations if another or others would pay part as tolling statute of limitations. 133 A.L.R. 974.

Promises or attempts by seller to repair goods as tolling statute of limitations for breach of warranty. 68 A.L.R.3d 1277.

Promissory estoppel as to statute of limitations. 48 A.L.R.2d 1069.

Proof of unadjudged incompetency which prevents running of statute of limitations. 9 A.L.R.2d 964.

Provision of statute of limitations excluding period of defendant’s absence from the state as applicable to a local cause of action against individual who was a nonresident when the same arose. 17 A.L.R.2d 502.

Real estate tax in lien foreclosure action as affected by doctrine that statutes of limitations do not apply to actions by sovereign. 59 A.L.R.2d 1144.

Reciprocal interinsurance exchange, statute applicable to action to enforce assessment against member. 94 A.L.R. 849; 141 A.L.R. 765; 145 A.L.R. 1121.

Rendition of services, transfer of property, or similar benefits other than money or obligation to pay money, as part payment tolling, or removing bar of, statute of limitations. 139 A.L.R. 1378.

Renewal or change in corporation’s obligation as affecting running of limitations against statutory liability of stockholder. 97 A.L.R. 638.

Right of creditor to set aside transfer of property as fraudulent as affected by the fact that his claim is barred by statute of limitations. 14 A.L.R.2d 598.

Right of creditor to set up statute of limitations against other creditor of his debtor. 71 A.L.R.2d 1049.

Running of statute of limitations as affected by doctrine of relation back to appointment of administrator. 3 A.L.R.3d 1234.

Running of statute of limitations against claim for services rendered over extended period under indefinite employment not fixing time of payment. 7 A.L.R.2d 198.

Setoff or counterclaim: tort claim against which period of statute of limitations has run as subject to setoff, counterclaim, cross bill, or cross action in tort action arising out of same accident or incident. 72 A.L.R.3d 1065.

Statement of account as reviving barred items. 51 A.L.R.2d 331.

Statute of limitations applicable in action to enforce, or recover damages for breach of contract to make a will. 94 A.L.R.2d 810.

Statute of limitations applicable to action, by way of subrogation or the like, by employer or insurance carrier against third person for injury to employee. 41 A.L.R.2d 1044.

Statute of limitations applicable to action for encroachment. 24 A.L.R.2d 903.

Statute of limitations applicable to action for unauthorized geophysical or seismograph exploration or survey. 67 A.L.R.2d 444.

Statute of limitations as defense to action or proceeding for alimony or support of child allowed by court order or decree. 70 A.L.R.2d 1250.

Statute of limitations concerning actions of trespass as applicable to actions for injury to property not constituting a common-law trespass. 15 A.L.R.3d 1228.

Statute of limitations governing action to recover unearned premium retained by insurer upon cancelation of policy. 29 A.L.R.2d 938.

Statute of limitations governing damage action against warehouseman for loss or damage to stored goods. 23 A.L.R.2d 1466.

Statute of limitations in civil actions for damages under the Racketeer Influence and Corrupt Organizations Act (RICO), 18 U.S.C.A. §§ 1961-1968. 156 A.L.R. Fed. 361.

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed. 5 A.L.R.2d 1021.

Stockholder’s derivative suit against directors and officers. 123 A.L.R. 346.

Stockholder’s statutory liability, effect on running of statute of limitations of renewal of corporation’s obligation. 97 A.L.R. 638.

Strict tort liability: what statute of limitations governs actions based on strict liability in tort. 91 A.L.R.3d 455.

Subrogated insurer: when does statute of limitations begin to run upon an action by subrogated insurer against third-party tortfeasor. 91 A.L.R.3d 844.

Theft: when statute of limitations begins to run against action for conversion of property by theft. 79 A.L.R.3d 847.

Time for bringing action based on promise not to make a will. 32 A.L.R.2d 380.

Time of accrual of cause of action to recover money or property lost and paid through gambling for purposes of statute of limitations. 22 A.L.R.2d 1390.

Time of existence of mental incompetency which will prevent or suspend running of statute of limitations. 41 A.L.R.2d 726.

Time when statute of limitations begins to run when one assumes and agrees to pay another’s debts. 31 A.L.R. 1056.

Time when statute of limitation starts to run against breach of covenant running with the land and requiring affirmative acts of covenantor. 17 A.L.R.2d 1251.

Time within which personal representative must commence action for refund of legacy or distribution. 29 A.L.R.2d 1248.

Timely suit to enforce policy as interrupting limitation against claimant’s amended pleading to reform it, or vice versa. 92 A.L.R.2d 168.

Tolling of statute of limitations where process is not served before expiration of limitation period as affected by statutes defining commencement of action, or expressly relating to interruption of running of limitations. 27 A.L.R.2d 236.

Tolling the statute of limitations by promise of holder of obligation to extend time for payment or not to press for payment as affected by question of waiver by, or estoppel of, obligor. 120 A.L.R. 774.

Tort actions, estoppel against defense of limitations in. 77 A.L.R. 1044.

Tort contribution or indemnity: when statute of limitations commences to run against claim for contribution or indemnity based on tort. 57 A.L.R.3d 867.

Trademark licensor’s liability for injury or death allegedly due to defect in licensed product. 90 A.L.R.4th 981.

Trespass: statutes of limitation concerning actions of trespass as applicable to actions for injury to property not constituting a common-law trespass. 15 A.L.R.3d 1228.

Unaccepted offer to compromise debt as tolling or removing bar of statute of limitations. 12 A.L.R. 544.

Unpaid stock or subscriptions, when statute begins to run against action by, or in behalf of creditors of corporation on. 35 A.L.R. 832.

Usurious payments of interest, right to apply, as credit on principal as affected by statute of limitations. 101 A.L.R. 741.

Usury, effect on indebtedness originally valid, of usurious forbearance, renewal or extension, where original debt is barred by limitations. 3 A.L.R. 884.

Validity and construction of beneficiary’s arrangement for payment to another, as they become due, of sums due under spendthrift trust. 83 A.L.R.3d 1142.

Validity and construction of statute terminating right of action for product-caused injury at fixed period after manufacture, sale, or delivery of product. 30 A.L.R.5th 1.

Validity of contractual time period, shorter than statute of limitations, for bringing action. 6 A.L.R.3d 1197.

Validity of statute enlarging limitation period. 79 A.L.R.2d 1080.

Waiver of, or estoppel to rely upon, contractual limitation of time for bringing action against municipality or other political subdivision. 81 A.L.R.2d 1039.

Waiver of tolling of statute of limitations by executor or administrator. 8 A.L.R.2d 660.

Warrant to confess judgment as affected by statute of limitations. 21 A.L.R. 774.

Warranty of seeds, nursery stock, etc., time of breach of, as affecting limitation of time to maintain action on. 16 A.L.R. 897; 32 A.L.R. 1241; 62 A.L.R. 451; 117 A.L.R. 470; 168 A.L.R. 581.

Warranty, when statute of limitation commences to run against action for breach of. 75 A.L.R. 1086.

What constitutes sufficient repudiation of express trust by trustee to cause statute of limitations to run. 54 A.L.R.2d 13.

What limitations period applies to action, based on duress, to set aside deed. 77 A.L.R.2d 821.

What period of limitation governs in an action against a public officer and the surety on his official bond. 18 A.L.R.2d 1176.

What statute of limitations applies to action, based on duress, to recover money or property. 77 A.L.R.2d 821.

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

What statute of limitations governs action by contractee for defective or improper performance of work by private building contractor. 1 A.L.R.3d 914.

What statute of limitations governs action for alienation of affections or criminal conversation. 46 A.L.R.2d 1086.

What statute of limitations governs action for malicious use of process or abuse of process, in the absence of express provision for such tort. 10 A.L.R.3d 533.

What statute of limitations governs action to reform instrument. 36 A.L.R.2d 687.

What statute of limitations governs damage action against attorney for malpractice. 2 A.L.R.4th 284.

What statute of limitations, in the absence of an express provision as to such tort, governs an action for malicious prosecution. 70 A.L.R.2d 1088.

What statute of limitations is applicable to a damage action under Federal Civil Rights Act. 98 A.L.R.2d 1160.

When cause of action accrues, for purpose of starting running of statute of limitations against action for malicious prosecution. 87 A.L.R.2d 1047.

When does limitation commence to run against action, defense, or counterclaim based on usury. 108 A.L.R. 622.

When does statute of limitations begin to run against action based on removal of lateral or subjacent support. 26 A.L.R. 1235.

When limitations begin to run against actions on public securities or obligations to be paid out of a special or particular fund. 50 A.L.R.2d 271.

When statute of limitation begins to run against action by attorney, not employed on contingent fee basis, for compensation for services. 60 A.L.R.2d 1008.

When statute of limitations begins to run against action for abuse of process. 1 A.L.R.3d 953.

When statute of limitations begins to run against action for false imprisonment or false arrest. 49 A.L.R.2d 922.

When statute of limitations begins to run against action on bond of personal representative. 44 A.L.R.2d 807.

When statute of limitations begins to run against action on contract which contemplates actual demand. 159 A.L.R. 1021.

When statute of limitations begins to run against an action on, or relating to, National Service Life Insurance policy. 44 A.L.R.2d 1189.

When statute of limitations begins to run against civil action for conspiracy. 62 A.L.R.2d 1369.

When statute of limitations begins to run against note payable on demand. 71 A.L.R.2d 284.

When statute of limitations begins to run against physician’s claim for compensation for medical services or treatment. 99 A.L.R.2d 251.

When statute of limitations begins to run as to guarantor of note payable on demand. 71 A.L.R.2d 284.

When statute of limitations begins to run on account stated. 51 A.L.R.2d 331.

When statute of limitations begins to run on contractual obligation to pay for minor’s support. 52 A.L.R.2d 1125.

When statute of limitations begins to run upon action against attorney for legal malpractice — deliberate wrongful acts or omissions. 67 A.L.R.5th 587.

When statute of limitations commences to run against action to set aside fraudulent conveyance or transfer. 100 A.L.R.2d 1094.

When statute of limitations commences to run against actions, based upon breach of contract, against physician, surgeon, dentist or similar practitioner. 80 A.L.R.2d 368.

When statute of limitations commences to run against claim for contribution or indemnity based on tort. 57 A.L.R.3d 867.

When statute of limitations commences to run against promise to pay debt “when able,” “when convenient,” or the like. 67 A.L.R.5th 479.

When statute of limitations starts to run against action for breach of covenant of warranty or of seisin. 95 A.L.R.2d 913.

When statute of limitations starts to run against bailor’s action for recovery, or for damages for detention, of property deposited for indefinite time. 57 A.L.R.2d 1044.

When statute of limitations starts to run against depositor’s cause of action against bank to recover funds paid out on check bearing forged indorsement. 82 A.L.R.2d 933.

When statute of limitations starts to run against enforcement of constructive trusts. 55 A.L.R.2d 220.

When statute of limitations starts to run against enforcement of resulting trust. 45 A.L.R.2d 382.

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

Workers’ compensation: effect of injured employee’s proceeding for workmen’s compensation benefits on running of statute of limitations governing action for personal injury arising from same incident. 71 A.L.R.3d 849.

Written promise to pay money, what constitutes, within statute of limitations. 111 A.L.R. 984.

9-1-14. Limitation of actions for words spoken or personal injuries.

  1. Actions for words spoken shall be commenced and sued within one year next after the words spoken, and not after.
  2. Actions for injuries to the person shall be commenced and sued within three (3) years next after the cause of action shall accrue, and not after, except as provided for otherwise in subsection (c) herein. Notwithstanding anything herein, any claim based on sexual abuse or exploitation of a child shall be governed by § 9-1-51 .
  3. As to an action for personal injuries wherein an injured party is entitled to proceed against an insurer pursuant to § 27-7-2 , where an action is otherwise properly filed against an insured within the time limitations provided for by this section, and process against the insured tortfeasor has been returned “non estinventus” and filed with the court, then the statutory limitation for filing an action under § 27-7-2 directly against an insurer shall be extended an additional one hundred twenty (120) days after the expiration of the time limitation provided for in subsection (b) herein.

History of Section. C.P.A. 1905, § 248; G.L. 1909, ch. 284, § 1; G.L. 1923, ch. 334, § 1; G.L. 1938, ch. 510, § 1; G.L. 1956, § 9-1-14 ; P.L. 1971, ch. 200, § 1; P.L. 1973, ch. 162, § 1; P.L. 1976, ch. 188, § 1; P.L. 1985, ch. 123, § 1; P.L. 2009, ch. 123, § 1; P.L. 2009, ch. 142, § 1; P.L. 2019, ch. 82, § 1; P.L. 2019, ch. 83, § 1.

Compiler’s Notes.

P.L. 2019, ch. 82, § 1, and P.L. 2019, ch. 83, § 1 enacted identical amendments to this section.

Cross References.

Alienation of affection, criminal conversation, and seduction causes of action abolished, § 9-1-42 .

Contribution by joint tort-feasor, limitation of actions, § 10-6-4 .

General laws, effect on periods of limitations, § 43-4-14 .

Paternity cases, limitation of actions, § 15-8-18 .

Proceedings to revoke plumbing license, § 5-20-28 .

Workmen’s compensation claims, limitations, § 28-35-57 .

Wrongful death, limitation of actions, § 10-7-2 .

Law Reviews.

Caselaw Survey Section: Statutes of Limitations, see 4 Roger Williams U. L. Rev. 800 (1999).

Survey Section: Statutes of Limitation, see 3 Roger Williams U. L. Rev. 530 (1998).

2000 Survey of Rhode Island Law, see 6 Roger Williams U. L. Rev. 593 (2001).

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

John W. Caruolo, 2016 Survey, Cases: Labor and Employment Law: Goddard v. APG Security-RI, LLC, 22 Roger Williams U. L. Rev. 842 (2017).

Comparative Legislation.

Limitation of actions:

Conn. Gen. Stat. § 52-573 et seq.

Mass. Ann. Laws, ch. 260, § 1 et seq.

NOTES TO DECISIONS

Constitutionality.

Unlike § 9-1-13(b) , which is unconstitutional because it completely denies court access to product-liability claimants that were injured by a product more than ten years old, § 9-1-14(b) , providing that actions for personal injuries shall be commenced within three years after the cause of action accrues, is a reasonable legislative enactment that fully complies with art. 1, sec. 5 of the R.I. Constitution. Renaud v. Sigma-Aldrich Corp., 662 A.2d 711, 1995 R.I. LEXIS 212 (1995).

Applicability.

Where a very large part of the misrepresentations in a federal securities case involved material omissions and the selective disclosure of written documents, this statute for oral “words spoken” did not apply. Holmes v. Bateson, 583 F.2d 542, 1978 U.S. App. LEXIS 9572 (1st Cir. 1978).

In an action under Federal Securities Exchange Act of 1934 for misrepresentation and nondisclosure encompassing written documents and silence as well as oral statements, the controlling statute of limitations was not provided by the “words spoken” provision of this section but by § 9-1-13 . Holmes v. Bateson, 434 F. Supp. 1365, 1977 U.S. Dist. LEXIS 15105 (D.R.I. 1977), aff'd in part and rev'd in part, 583 F.2d 542, 1978 U.S. App. LEXIS 9572 (1st Cir. 1978), disapproved, Ceres Partners v. GEL Assoc., 918 F.2d 349, 1990 U.S. App. LEXIS 19741 (2d Cir. 1990).

An action for legal malpractice is governed by § 9-1-13 (previously six years, now ten years) for civil actions not otherwise specifically provided for and does not qualify as a cause for “injuries to the person” under the three-year statute of limitations of this section. Church v. McBurney, 513 A.2d 22, 1986 R.I. LEXIS 529 (1986).

Reservoir company’s takings claim against the State of Rhode Island under the Fifth Amendment was time-barred, where the claim was 23 years old. Pascoag Reservoir & Dam, LLC v. Rhode Island, 217 F. Supp. 2d 206, 2002 U.S. Dist. LEXIS 15591 (D.R.I. 2002), aff'd, 337 F.3d 87, 2003 U.S. App. LEXIS 14931 (1st Cir. 2003).

In a certified question from a federal district court pursuant to R.I. Sup. Ct. art. I, R. 6, the Supreme Court of Rhode Island holds that the one-year statute of limitations of R.I. Gen. Laws § 28-5-17(a) of the Rhode Island Fair Employment Practices Act (FEPA), R.I. Gen. Laws § 28-5-1 , applied to employment discrimination cases brought under the Rhode Island Civil Rights Act (RICRA), R.I. Gen. Laws § 42-112-1 et seq., because (1) as the FEPA and the RICRA are in pari materia with respect to employment discrimination claims, harmonization of the two statutes is best achieved by engrafting onto the RICRA the one-year statute of limitations contained in the FEPA, R.I. Gen. Laws § 28-5-17(a) ; (2) application of the three-year residual statute of limitations of R.I. Gen. Laws § 9-1-14(b) would in effect render meaningless the one-year statute of limitations of R.I. Gen. Laws § 28-5-1 7(a) contained in the FEPA by allowing plaintiffs an end run around the limitations provision of the latter statute; and (3) FEPA reflects the Rhode Island General Assembly’s weighing of policy considerations and its legislative judgment that one year is the appropriate amount of time within which claims of employment discrimination should be brought, and the Supreme Court of Rhode Island is unable to perceive any adequate reason for not holding that the same legislative determination should be applied to RICRA, bearing in mind that it is a later-enacted statute and (significantly) is silent as to the limitations issue. Horn v. S. Union Co., 927 A.2d 292, 2007 R.I. LEXIS 87 (2007).

Trial court erred in denying the minor’s motion to amend the complaint and add a defendant, as the motion was not untimely filed; even though the underlying lawsuit had been filed by the minor’s parents, R.I. Gen. Laws § 9-1-19 tolled the statute of limitations on personal injury actions, found at R.I. Gen. Laws § 9-1-14(b) , until such time as the impediment, the minor’s age, was removed at age 18 and, thus, the motion to amend to add a party defendant was timely filed because the minor was less than 18-years-old at the time the motion to amend was filed. Rachal v. O'Neil, 925 A.2d 920, 2007 R.I. LEXIS 76 (2007).

Accrual of Cause of Action.

For the purposes of this section, direct liability of a liability insurer under § 27-7-1 to person injured by the insured accrues at the same time the cause of action against the insured accrues, rather than at the time process against the insured is returned non est inventus. Luft v. Factory Mut. Liability Ins. Co., 51 R.I. 452 , 155 A. 526, 1931 R.I. LEXIS 73 (1931), overruled in part, Frazier v. Liberty Mut. Ins. Co., 229 A.3d 56, 2020 R.I. LEXIS 44 (2020).

Where the federal rights violations alleged in plaintiffs’ complaint all took place in 1969, their claim under 42 U.S.C. § 1983 accrued in that year even though some of the damages alleged to have been the effect of the violations occurred later. Walden, III, Inc. v. Rhode Island, 576 F.2d 945, 1978 U.S. App. LEXIS 10866 (1st Cir. 1978).

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 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).

In product liability actions, as in negligence cases, the cause of action accrues from the time of injury. Plouffe v. Goodyear Tire & Rubber Co., 118 R.I. 288 , 373 A.2d 492, 1977 R.I. LEXIS 1457 (1977).

Where the state police forced a suspect, without a search or arrest warrant, over his and his attorney’s objections, to undergo a benzidine test to indicate the presence of blood on the skin, the test involving applying a solution over the body, causing a burning sensation and a rash, a civil rights action under 42 U.S.C. § 1983, and a state law negligence claim, both accrued when the test was administered, and not at a later date when the plaintiff learned that benzidine was a carcinogen, as he already knew that certain of his federal constitutional rights had been violated, and as the medical effects of benzidine were not “inherently unknowable.” Marrapese v. Rhode Island, 749 F.2d 934, 1984 U.S. App. LEXIS 16135 (1st Cir. 1984), cert. denied, 474 U.S. 921, 106 S. Ct. 252, 88 L. Ed. 2d 259, 1985 U.S. LEXIS 4121 (1985).

In drug product-liability cases, a cause of action does not accrue until the plaintiff knows, or should reasonably know, of the alleged wrongful conduct of the manufacturer. Anthony v. Abbott Labs., 490 A.2d 43, 1985 R.I. LEXIS 474 (1985).

The statute of limitations begins to run in a drug product-liability action not when the plaintiff discovers the personal injuries and its cause, but when plaintiff discovers or should have discovered knowledge of defendant manufacturer’s wrongful conduct. Anthony v. Abbott Labs., 490 A.2d 43, 1985 R.I. LEXIS 474 (1985).

In a drug product-liability action where the manifestation of an injury, the cause of that injury, and the person’s knowledge of the wrongdoing by the manufacturer occur at different points in time, the running of the statute of limitations would begin when the person discovers, or with reasonable diligence should have discovered, the wrongful conduct of the manufacturer. Anthony v. Abbott Labs., 490 A.2d 43, 1985 R.I. LEXIS 474 (1985).

In a product liability action in which the plaintiff was injured as a result of inhaling fumes from acetic acid that had spilled at her place of employment, whether she had exercised due diligence in her efforts to identify the manufacturer/supplier of the acid was irrelevant to whether the statute of limitations under this section was tolled. The statute is tolled until the plaintiff, exercising due diligence, should have discovered the wrongful conduct of the manufacturer, not the identity of the manufacturer. Renaud v. Sigma-Aldrich Corp., 662 A.2d 711, 1995 R.I. LEXIS 212 (1995).

In actions against nonperpetrator-defendants for damages resulting from childhood sexual abuse (e.g., an action against the abuser’s employer), the period of limitation under subsection (b) commences to accrue at the time the injury occurs, subject to the tolling provisions of § 9-1-19 , not the time of discovery. Kelly v. Marcantonio, 678 A.2d 873, 1996 R.I. LEXIS 187 (1996).

The tort of intentional interference with a contract is not an “injury to person” and thereby is not subject to the three year statute of limitation; but, rather, is a property interest created by a contract and is thus subject to a ten-year statute of limitations. Thus, plaintiff, an attorney, could maintain a suit against defendant, another attorney, for interference with a contractual relationship. McBurney v. Roszkowski, 687 A.2d 447, 1997 R.I. LEXIS 1 (1997).

The legislature’s decision not to incorporate a discovery provision in subsection (b) of this section at the same time that it enacted the discovery provision in § 9-1-51 evinced an intent that claims governed by the former provision continue to be considered as accruing at the time of injury. Kelly v. Marcantonio, 187 F.3d 192, 1999 U.S. App. LEXIS 18396 (1st Cir. 1999).

Where the alleged personal injury to the plaintiffs was the actual payment of tapping fees, the statute of limitations began to accrue for each plaintiff upon individual payment of those fees. Paul v. City of Woonsocket, 745 A.2d 169, 2000 R.I. LEXIS 29 (2000).

Accrual of a parishioner’s cause of action for clergy malpractice against the minister with whom she had an affair and against church officials who allegedly failed to act to prevent further injuries to her was not tolled since the parishioner was an adult, all her injuries related back to the affair itself, and the parishioner was aware of all the facts upon which she might have based a claim for relief far longer than three years before filing her complaint. Martin v. Howard, 784 A.2d 291, 2001 R.I. LEXIS 229 (2001).

Where a husband did not file a defamation and malicious prosecution suit for seven years after the husband was arrested for disorderly conduct based on allegations made by the acquaintances, and where the husband did not show that he was of unsound mind when the action accrued in accordance with R.I. Gen. Laws § 9-1-19 , the statutes of limitations in R.I. Gen. Laws § 9-1-14 were not tolled and the acquaintances were entitled to summary judgment. Austin v. Carden, 818 A.2d 662, 2003 R.I. LEXIS 51 (2003).

Pediatrician’s action against a supervisor, who allegedly called the pediatrician “psychotic” when contacted about the pediatrician’s application for hospital staff privileges, was untimely under the statute because the pediatrician knew of the statements at least one year prior to filing suit even if the court applied the discovery rule to the case. Mills v. Toselli, 819 A.2d 202, 2003 R.I. LEXIS 89 (2003).

Family’s claims for emotional distress, negligence, and due process violations under 42 U.S.C.S. § 1983 could not escape operation of Rhode Island’s three-year statute of limitations for personal injury claims through the continuing violation doctrine; the family knew of their injuries when they received an April 1, 1998, letter denying health coverage. And while they may have continued to suffer after that point, those effects were consequences of the original denial of coverage, and not additional violations. Adams v. Town of Burrillville, 249 F. Supp. 2d 151, 2003 U.S. Dist. LEXIS 3723 (D.R.I. 2003).

Negligence and intentional infliction of emotional distress allegations were time-barred, under R.I. Gen. Laws § 9-1-14(b) , because, even if the discovery rule applied to such tort claims: (1) plaintiff discovered or should have discovered that he suffered actionable injuries as early as a grand jury indictment in May 1995; (2) the record established that plaintiff knew or, in the exercise of reasonable diligence, should have known, that he had suffered an injury, allegedly arising from the negligent or intentional conduct of the Rhode Island State Employees’ Retirement Board and a former general treasurer, in 1995—or at the latest in 1997; and (3) plaintiff filed his lawsuit in 2001. Hill v. R.I. State Emples. Ret. Bd., 935 A.2d 608, 2007 R.I. LEXIS 111 (2007).

Terminated employee’s claims against his former employer—pertaining to the employer installing tracking software on the employee’s work computer—were barred by the three-year statute of limitations; the discovery rule was not applicable to the employee’s computer crimes claims under the circumstances of the case because the employee knew of his alleged injury when he was arrested on child pornography charges, and even assuming the discovery rule applied, the latest a reasonable person would have discovered the cause of action was at the employee’s unemployment hearing when testimony was given concerning the employer’s installation of the tracking software. Boudreau v. Automatic Temperature Controls, Inc., 212 A.3d 594, 2019 R.I. LEXIS 108 (2019).

Superior court erred in holding that the statute of limitations barred a customer’s claim for personal injuries that arose from a fall on an insured’s property, where the customer’s first suit against the insured was dismissed and then the customer substituted the insurer under § 27-7-2 in the second suit. The savings statute § 9-1-22 , was applicable since the insurer and the insured in this case shared a sufficient commonality of interest to consider them sufficiently linked under the savings statute; and the insurer was aware of the lawsuit, as it had dispatched lawyers to ask the court to dismiss the first action on grounds of inadequate service of process on its insured. Frazier v. Liberty Mut. Ins. Co., 229 A.3d 56, 2020 R.I. LEXIS 44 (2020).

Luft v. Factory Mut. Liability Co., 51 R.I. 452 , 155 A. 526 (1931), is overruled to the extent it is inconsistent with this opinion. Frazier v. Liberty Mut. Ins. Co., 229 A.3d 56, 2020 R.I. LEXIS 44 (2020).

Superior court did not err in granting defendants’ motion for summary judgment on the ground that the three-year statute of limitations had run before plaintiff and his wife filed their complaint based on his wrongful conviction. Plaintiff’s injuries were first sustained when he was arraigned on October 5, 2007, which was more than three years prior to the April 2012 filing of the complaint; and, even if the discovery rule were applied, plaintiff and his wife knew or should have known of the potential claims at issue, at the latest, at the time of plaintiff’s conviction. Polanco v. Lombardi, 231 A.3d 139, 2020 R.I. LEXIS 56 (2020).

Because the officer’s failure to file a police report could not amount to fraudulent concealment, as fraudulent concealment required an actual misrepresentation which was more than mere silence or inaction, and an investigator’s deposition testimony did not reflect that any actual misrepresentation was made with respect to the existence of witnesses or with respect to the officer having interviewed witnesses, the three-year statute of limitations was not tolled under § 9-1-20 . Polanco v. Lombardi, 231 A.3d 139, 2020 R.I. LEXIS 56 (2020).

— Cigarette Products Liability.

The accrual of a cigarette product liability action is akin to that of a latent injury case: while the exposure and injury is ongoing, the injuries do not become apparent until the symptoms begin to manifest themselves at a later date. Therefore, a cigarette product liability cause of action accrues when the plaintiff has knowledge, or reasonably should have knowledge, of an injury and a possible causal connection between the injury and the plaintiff’s exposure to cigarette smoke. Arnold v. R.J. Reynolds Tobacco Co., 956 F. Supp. 110, 1997 U.S. Dist. LEXIS 2190 (D.R.I. 1997).

As a matter of law, plaintiff’s condition in 1989 did not so clearly point to the onset of cancer that a lay person could have foreseen it as likely where it was not until an x-ray in 1993 that lung cancer was revealed, where the record did not show that this test followed a series of conversations with friends or doctors about the possibility of cancer, and where the cancer did not appear to be linked, as a matter of law, to prior illnesses for which she had been treated by several doctors. Nicolo v. Phillip Morris, Inc., 201 F.3d 29, 2000 U.S. App. LEXIS 112 (1st Cir. 2000).

— Repetitive Stress Injury.

A product liability action against a keyboard manufacturer for repetitive stress injuries accrued, at the very latest, when plaintiff was diagnosed as suffering from carpal tunnel syndrome. Naples v. Acer Am. Corp., 970 F. Supp. 89, 1997 U.S. Dist. LEXIS 10025 (D.R.I. 1997).

Action Against Labor Union.

A member’s claim that his union failed to properly represent him under § 28-9.4-4 was an action for a tortious injury for which the limitation of actions appropriate to a tort in this section applied. McDonald v. Rhode Island Gen. Council, 505 A.2d 1176, 1986 R.I. LEXIS 425 (1986), limited, Lagana v. IBEW-Local 1274, 767 A.2d 666, 2001 R.I. LEXIS 72 (2001).

The federal six-month statute of limitations and not the state statute governed an unfair representation claim since the employee concerned was a private sector employee and the dispute concerned an interpretation of the union’s collective bargaining agreement with her former employer. Lagana v. IBEW-Local 1274, 767 A.2d 666, 2001 R.I. LEXIS 72 (2001).

Appeals.

In an employee’s suit alleging that a coworker assaulted the employee, where a district court determined that it lacked personal jurisdiction over the employer and transferred the case from Massachusetts to Rhode Island, and the case was dismissed based on the statute of limitations, the employee’s appeal was rejected because the employee did not challenge the transfer order or the dismissal order; the employee challenged a dismissal order that the district court never made. Cioffi v. Gilbert Enters., 769 F.3d 90, 2014 U.S. App. LEXIS 19212 (1st Cir. 2014).

Civil Rights Actions.

The limitations period of this section applies to cases brought under 42 U.S.C. § 1983. Marrapese v. Rhode Island, 500 F. Supp. 1207 (D.R.I. 1980). In accord with Marrapese v. Rhode Island, 500 F. Supp. 1207, 1980 U.S. Dist. LEXIS 14049 (D.R.I. 1980). See McManus v. Wall, 2001 U.S. Dist. LEXIS 15791 (D.R.I. Aug. 31, 2001).

Actions brought pursuant to the Rhode Island Civil Rights Act of 1990 (RICRA), R.I. Gen. Laws §§ 42-112-1 to 41-112-2, are governed by Rhode Island’s three-year residual statute of limitations for injuries to the person under R.I. Gen. Laws § 9-1-14(b) . Rathbun v. Autozone, Inc., 361 F.3d 62, 2004 U.S. App. LEXIS 5126 (1st Cir. 2004).

Because an employee’s layoff constituted a discrete act to which the continuing violation exception did not apply and there was no indicia of discriminatory animus based on the employee’s age, the motion justice correctly granted summary judgment to the employer on the employee’s claims under R.I. Gen. Laws § 9-1-14(b) , the Rhode Island Civil Rights Act of 1990, R.I. Gen. Laws tit. 42, ch. 112, and R.I. Gen. Laws § 28-5-17(a) of the State Fair Employment Practices Act claims, R.I. Gen. Laws tit. 28, ch. 5. Croce v. Office of Adjutant Gen., 881 A.2d 75, 2005 R.I. LEXIS 172 (2005).

Prisoner’s 42 U.S.C.S. § 1983 excessive force claims against police officers were time-barred under R.I. Gen. Laws § 9-1-14(b) because the prisoner’s action was filed more than three years after the police brutality allegedly occurred incident to the prisoner’s arrest and equitable tolling was not warranted where the prisoner had various opportunities to raise his police brutality claim within the limitations period. Rodriguez v. Providence Police Dep't, 2011 U.S. Dist. LEXIS 2657 (D.R.I. Jan. 10, 2011).

— Municipal Defendants.

An action under 42 U.S.C. § 1983 against a Rhode Island municipality is governed by the general three-year limitation period on actions for injuries to the person in this section and not the two-year limitation period on actions against municipalities in § 9-1-25 . Pearman v. Walker, 512 F. Supp. 228, 1981 U.S. Dist. LEXIS 11727 (D.R.I. 1981).

A family’s claims for intentional infliction of emotional distress, negligence, and due process violations brought under 42 U.S.C.S. § 1983 were time-barred because the family filed its complaint against a town and its employees more than three years after the town’s alleged misconduct; the complaint, therefore, was not filed within the time period prescribed by Rhode Island’s three-year statute of limitations for personal injury actions. Adams v. Town of Burrillville, 249 F. Supp. 2d 151, 2003 U.S. Dist. LEXIS 3723 (D.R.I. 2003).

Commencement of Action.

Issuance of a writ is commencement of suit at law if with absolute and honest intention of having it served, but where there was a substantial alteration of its date and of the return date before service, commencement is deemed at the time of alteration and therefore party being served, where not responsible for delay, was not estopped from setting up statute of limitations as a defense. Byron v. Great American Indem. Co., 54 R.I. 405 , 173 A. 546, 1934 R.I. LEXIS 104 (1934).

The filing of a complaint for damages for personal injuries on the last day of the two-year period of limitation tolled the statute of limitation although summons to the defendants was not issued until more than a year later. Caprio v. Fanning & Doorley Constr. Co., 104 R.I. 197 , 243 A.2d 738, 1968 R.I. LEXIS 635 (1968).

Where the three-year limitations period ran from October 12, 1979 (the day following the accident), to Tuesday, October 12, 1982, which did not fall on a weekend and was not a holiday — legal or otherwise — under Rhode Island law, having in mind that the courts were in session and business was being conducted in the ordinary course on October 12th, the mere fact that it was the exact chronological anniversary of the landfall of the Columbus-led expedition some 490 years ago is of no consequence, and the limitations period applicable to the plaintiff’s action expired on that day; the commencement of the suit on October 13, 1982 was, given the seasonable interposition of an appropriate affirmative defense raising the time bar, legally ineffectual. Kussmaul v. Peters Constr. Co., 563 F. Supp. 91, 1983 U.S. Dist. LEXIS 17915 (D.R.I. 1983).

Under Rules of Civil Procedure 14(a), 14(b), and 14(c) plaintiffs could not defeat the statute of limitations in favor of a third-party defendant by amendment, although defendant had been impleaded within statutory period. Laliberte v. Providence Redevelopment Agency, 109 R.I. 565 , 288 A.2d 502, 1972 R.I. LEXIS 1220 (1972).

In a personal injury action, the statute of limitations began to run on March 30, 1991, the day immediately following the incident in which the plaintiffs were injured. Under § 9-1-14(b) , the plaintiffs were required to commence suit, if at all, by March 29, 1994, which date represented the three-year calendar anniversary of the cause of action. Burke v. Rhode Island College, 671 A.2d 803, 1996 R.I. LEXIS 57 (1996).

Where an accident suit was filed after a minor achieved majority, service which was not made until seven months later was not effectuated within a reasonable time. O'Donnell v. Twin City Fire Ins. Co., 40 F. Supp. 2d 68, 1999 U.S. Dist. LEXIS 3541 (D.R.I. 1999).

— Saving Statute.

This section’s limitations period may not be extended or tolled by an action outside the forum state through the application of Rhode Island “saving” statute, § 9-1-22 , and a plaintiff had no right to commence a new action upon her locally expired claim for personal injuries within one year after the dismissal of a Massachusetts action based upon the same occurrence. Goyette v. Suprenant, 622 A.2d 1001, 1993 R.I. LEXIS 100 (1993).

Arrestee’s 42 U.S.C.S. § 1983 claim for false arrest against a police officer could not be dismissed as untimely under R.I. Gen. Laws § 9-1-14(b) at the summary judgment stage because it was unclear whether the arrestee’s state court action against the police officer was ever commenced and whether the arrestee’s state court action was terminated in a manner qualifying him for an extension under the savings provision in R.I. Gen. Laws § 9-1-22 . Bibby v. Petrucci, 2009 U.S. Dist. LEXIS 113573 (D.R.I. Dec. 4, 2009).

Conflict of Laws.

Action for injuries from auto accident is controlled by the statute of limitations of the state where the action is commenced and not where the cause of action accrued. Byron v. Great American Indem. Co., 54 R.I. 405 , 173 A. 546, 1934 R.I. LEXIS 104 (1934).

Statutory liability of liability insurer to injured party is controlled by the statute creating the liability, rather than by the statute of limitations of the state where action is brought. Byron v. Great American Indem. Co., 54 R.I. 405 , 173 A. 546, 1934 R.I. LEXIS 104 (1934).

Derivative Claims.

An insurer’s claim by subrogation is derivative from that of the insured, and it is subject to the same statute of limitation as though the action were sued upon by the insured. Silva v. Home Indem. Co., 416 A.2d 664, 1980 R.I. LEXIS 1665 (1980).

An insurer subrogated to a contribution or indemnity action of its insured who files suit on that cause of action against an alleged cotortfeasor must do so within the limitations period applicable to that contribution or indemnity claim and is not limited for that purpose by any limitations period applicable to the underlying tort action. Hawkins v. Gadoury, 713 A.2d 799, 1998 R.I. LEXIS 221 (1998).

Where a motion to amend was filed more than three years after the cause of action for loss of consortium accrued, the claim was barred by the limitations period in R.I. Gen. Laws § 9-1-41 and R.I. Gen. Laws § 9-1-14 . Balletta v. McHale, 823 A.2d 292, 2003 R.I. LEXIS 135 (2003).

Employer Drug Testing Statute.

Violations of the employer drug testing statute (EDTS), § 28-6.5-1 , result in “injuries to the person” as contemplated by the three-year statute of limitations and, accordingly, are subject to the three-year period in this section rather than the 10-year period in § 9-1-13 ; moreover, actions under § 9-1-2 for civil liability for the victims of criminal offenses, which would include the misdemeanor offense created by the EDTS, are also subject to the three-year statute of limitations. Because an employee filed her action more than three years after the alleged violation of the EDTS, the claims were time-barred. Goddard v. APG Security-RI, LLC, 134 A.3d 173, 2016 R.I. LEXIS 34 (2016).

Federal Diversity Action.

In a federal diversity action, Rhode Island law must govern judicial computation of the three-year statute of repose under this section. Kussmaul v. Peters Constr. Co., 563 F. Supp. 91, 1983 U.S. Dist. LEXIS 17915 (D.R.I. 1983).

Under New York law, a product liability action for injuries sustained in Rhode Island must have been timely under both New York and Rhode Island limitations laws. Naples v. Acer Am. Corp., 970 F. Supp. 89, 1997 U.S. Dist. LEXIS 10025 (D.R.I. 1997).

Malicious Use of Process.

An action for malicious prosecution based upon malicious use of process is an injury to the person under this statute. Commerce Oil Ref. Corp. v. Miner, 98 R.I. 14 , 199 A.2d 606, 1964 R.I. LEXIS 127 (1964).

Personal Injuries.

Action for malpractice was barred by limitation period set forth in this section for injuries to the person, regardless of whether complaint sounded in tort or contract. Griffin v. Woodhead, 30 R.I. 204 , 74 A. 417, 1909 R.I. LEXIS 17 (1909).

An action by a husband for loss of services of his wife and for medical damages due to her injuries was an action for injuries to the person under this section. Desjourdy v. Mesrobian, 52 R.I. 146 , 158 A. 719, 1932 R.I. LEXIS 13 (1932).

Plaintiff’s right of action for damages for personal injury alleged to have resulted from medical malpractice accrued and the limitation began to run when she discovered or, by the exercise of reasonable diligence, should have discovered that she had sustained an injury as a result of the alleged negligent treatment of the defendant physicians. Wilkinson v. Harrington, 104 R.I. 224 , 243 A.2d 745, 1968 R.I. LEXIS 639 (1968).

Action alleging that plaintiffs had suffered physical injury as the result of ingestion of or exposure in utero to diethylstilbestrol (DES) was governed by three-year statute of limitation in this section. Anthony v. Abbott Labs., 490 A.2d 43, 1985 R.I. LEXIS 474 (1985).

Where the thrust of plaintiffs’ complaint under 42 U.S.C. § 1983 was not that defendants had violated private obligations but rather that they had maliciously violated a duty, founded on social policy, not to interfere with the plaintiffs’ fourth amendment rights, the alleged injuries were personal injuries under Rhode Island law, and the limitations period of this section, rather than that of § 9-1-13 , applied. Walden, III, Inc. v. Rhode Island, 576 F.2d 945, 1978 U.S. App. LEXIS 10866 (1st Cir. 1978).

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 plaintiffs 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 two year period of limitation in this section applies to an action for personal injuries brought under § 6A-2-318 . Kelly v. Ford Motor Co., 110 R.I. 83 , 290 A.2d 607, 1972 R.I. LEXIS 881 (1972).

An action against insurance company under uninsured motorist clause of policy by person who was a passenger in insured’s car was an action on contract subject to six year statute of limitations under § 9-1-13 although cause of action resulted from personal injury. Pickering v. American Employers Ins. Co., 109 R.I. 143 , 282 A.2d 584, 1971 R.I. LEXIS 1035 (1971).

In a personal injury action, the three-year statute of limitations applied to any cause of action which had accrued less than two years prior to August 1, 1971, the effective date of amendment of the statute increasing the period from two to three years, and that otherwise the increased period should apply prospectively. Sullivan v. Spicer, 114 R.I. 435 , 945, 335 A.2d 632, 1975 R.I. LEXIS 1434 (1975).

Attempted addition of defendants to malpractice action was to no avail subsequent to the running of the statute of limitations in the absence of events that would have tolled the running of the statute and the defense could be raised by motion to dismiss for failure to state a claim where defect appeared on face of complaint. Young v. Park, 116 R.I. 568 , 359 A.2d 697, 1976 R.I. LEXIS 1308 (1976).

Where the statute of limitations for personal injuries was extended from two to three years and shortly thereafter the age of majority was reduced from 21 to 18 years, plaintiff argued that the two statutes should be read together so that she would have three years from the time the disability of minority was removed in which to commence her action, but the court held that the action accrued at the time of the injury, and, since that event occurred before either the effective date of the new statute of limitations or its retrospective application provision, the original two-year statute of limitations applied and plaintiff’s suit was untimely. Von Villas v. Williams, 117 R.I. 309 , 366 A.2d 545, 1976 R.I. LEXIS 1630 (1976).

In determining which state statute of limitations should govern a federal claim brought under 42 U.S.C.A. § 1983, allegations that plaintiffs were unlawfully harassed in various ways by state officials were in essence charges of “injury to the person” and therefore the three-year limitation of this section applied; and although the harassment also involved property damage, such damage was only incidental to the personal injuries allegedly suffered by plaintiffs, and did not suffice to characterize plaintiffs’ claim as a general civil action such as would be covered by § 9-1-13 . Walden III, Inc. v. Rhode Island, 442 F. Supp. 1168, 1977 U.S. Dist. LEXIS 12236 (D.R.I. 1977), aff'd, 576 F.2d 945, 1978 U.S. App. LEXIS 10866 (1st Cir. 1978).

Since this section covers injuries to personal dignity and is not limited to physical injury, actions under 42 U.S.C.A. § 1981 for employment discrimination come under this section rather than the general limitation statute, § 9-1-13 . Partin v. St. Johnsbury Co., 447 F. Supp. 1297, 1978 U.S. Dist. LEXIS 18919 (D.R.I. 1978).

The appropriate residual statute for personal injury claims is § 9-1-14(b) , not § 9-1-13(a) . Paul v. City of Woonsocket, 745 A.2d 169, 2000 R.I. LEXIS 29 (2000).

The state’s general personal injury statute of limitations applied to a suit brought under 42 U.S.C. § 1983. Doctor v. Wall, 143 F. Supp. 2d 203, 2001 U.S. Dist. LEXIS 2338 (D.R.I. 2001).

Filing of a complaint against an insurer, pursuant to R.I. Gen. Laws § 27-7-2 , beyond the statutory limitations period for a personal injury action foreclosed the plaintiffs’ ability to proceed against the insurer directly for the actions of the deceased insured. The definitive service of process time requirements provided in R.I. Super. Ct. R. Civ. P. 4 (l) did not toll the statutory filing limitations provided in R.I. Gen. Laws § 9-1-14(b) . DeSantis v. Prelle, 891 A.2d 873, 2006 R.I. LEXIS 25 (2006).

Because the record was devoid of any indication that an insurer induced a plaintiff’s late filing of a personal injury action under R.I. Gen. Laws § 9-1-14 , the trial court properly granted summary judgment to the insured and a driver. McAdam v. Grzelczyk, 911 A.2d 255, 2006 R.I. LEXIS 187 (2006).

Plaintiffs’ sexual assault and conspiracy suit against a church and officials was barred by the three-year statute of limitations in R.I. Gen. Laws § 9-1-14(b) because: (1) they filed suit more than 10 years after the statutory period had run; and (2) the statute was not tolled since there was no evidence that actual misrepresentations were made by defendants with regard to plaintiffs’ potential civil claims, and their reason for delay was not objectively reasonable. Ryan v. Roman Catholic Bishop, 941 A.2d 174, 2008 R.I. LEXIS 12 , cert. denied, 555 U.S. 955, 129 S. Ct. 422, 172 L. Ed. 2d 305, 2008 U.S. LEXIS 7508 (2008).

When, three years after an alleged injured party was sued for personal injuries arising from a plane crash, the alleged injured party filed a third-party complaint against the pilot of a plane involved in the crash, the complaint was time-barred because it was undisputed that the third-party complaint was filed more than three years after the accident during which the alleged injured party suffered the alleged personal injuries. Kodar, LLC v. United States FAA, 879 F. Supp. 2d 218, 2012 U.S. Dist. LEXIS 78381 (D.R.I. 2012).

— Assault and Battery.

The limitation period set forth in subsection (b) is the appropriate statute of limitations, where the nature of plaintiff ’s claim for relief under § 9-1-2 arises out of an alleged assault and battery for which she is entitled to relief by reason of being a person in the eyes of the law. Lyons v. Scituate, 554 A.2d 1034, 1989 R.I. LEXIS 30 (1989).

Plaintiff’s assault and battery claim was untimely since she was placed on inquiry notice of the possible presence of asbestos after a Department of Environmental Management inspection in 1990 but failed to file a claim until 1995. Kelley v. Cowesett Hills Assocs., 768 A.2d 425, 2001 R.I. LEXIS 86 (2001).

— — Sexual Abuse of Minor.

The time within which a claim for injury resulting from sexual abuse of a minor must be brought is governed by subsection (b) of this section, not § 9-1-51 when the claim is asserted against someone other than the alleged abuser (e.g., against the abuser’s employer). Kelly v. Marcantonio, 678 A.2d 873, 1996 R.I. LEXIS 187 (1996).

A temporary inability to remember alleged acts of sexual abuse, failure to recognize those acts as tortious, or a difficulty in overcoming a reluctance to “re-live” the matter by initiating legal action did not constitute a condition of “unsound mind” that tolled the period of limitations. Smith v. O'Connell, 997 F. Supp. 226, 1998 U.S. Dist. LEXIS 3456 (D.R.I. 1998), aff'd sub nom. Kelly v. Marcantonio, 187 F.3d 192, 1999 U.S. App. LEXIS 18396 (1st Cir. 1999).

Where the nature of plaintiffs’ claims arose out of alleged sexual abuse by priest-defendants, damages were being sought for the sexual abuse, not for any alleged conspiracy or cover-up by hierarchy-defendants, and the limitation period set forth in subsection (b) of this section was applicable. Kelly v. Marcantonio, 187 F.3d 192, 1999 U.S. App. LEXIS 18396 (1st Cir. 1999).

— Breach of Warranty.

The statute of limitations found in § 6A-2-725 (contracts for sale) is inapplicable to a claim of breach of warranty resulting in personal injuries. Pirri v. Toledo Scale Corp., 619 A.2d 429, 1993 R.I. LEXIS 23 (1993).

Personal injury actions, whether in negligence or in breach of warranty, must be brought within the three-year limitations period of this section. Martin v. Quality Rental Ctr., 633 A.2d 264, 1993 R.I. LEXIS 238 (1993).

— Product Liability.

The action by a plaintiff for an injury to his hand while operating a meat-cutting machine manufactured by the defendant, was subject to the statute of limitations set forth in this section and not § 9-1-13(a) (product liability actions). Pirri v. Toledo Scale Corp., 619 A.2d 429, 1993 R.I. LEXIS 23 (1993).

Retroactive Application.

Where plaintiff’s action was barred by this statute prior to the 1971 amendment extending the period to three years, and where pending appeal of the dismissal of his action the legislature in 1973 added the retroactive clause, the law in effect at the time of appellate decision applied, and plaintiff’s cause of action was revived. Twomey v. Carlton House, 113 R.I. 264 , 320 A.2d 98, 1974 R.I. LEXIS 1172 (1974).

Tolling Under § 9-5-20.

Superior court properly granted summary judgment in favor of a condominium association in a pedestrian’s personal injury action because the three-year statute of limitations was not tolled by the provisions of the fictitious name statute, § 9-5-20 , where the pedestrian knew the identity of the association before the statutory period expired, and her confusion over the name simply did not change the fact that she knew the identity of the association. Garant v. Winchester, 150 A.3d 606, 2016 R.I. LEXIS 124 (2016).

Words Spoken.

An action by a lender against a borrower and his accountant for fraud in an accounting statement supplied by the borrower to the lender in order to obtain a loan is not an action for “words spoken” governed by this section. Rusch Factors, Inc. v. Levin, 284 F. Supp. 85, 1968 U.S. Dist. LEXIS 7731 (D.R.I. 1968).

The term “words spoken” is plain and unambiguous and should not be sought to be construed in relation to the somewhat tortuous history of the distinction between libel and slander. Mikaelian v. Drug Abuse Unit, 501 A.2d 721, 1985 R.I. LEXIS 598 (1985).

“Words spoken” do not include written material. Mikaelian v. Drug Abuse Unit, 501 A.2d 721, 1985 R.I. LEXIS 598 (1985).

Superior court properly granted summary judgment in favor of a doctor and his medical practice because the client’s claim for slander based on the doctor’s Workers’ Compensation Court deposition testimony was barred by the statute of limitations, R.I. Gen. Laws § 9-1-14(a) ; the client waited well over four years after the doctor testified before she brought her claim for slander based on the deposition. Francis v. Gallo, 59 A.3d 69, 2013 R.I. LEXIS 16 (2013).

Written Defamation or Libel.

The three-year statute of limitations relating to injuries to the person is applicable to an action for written defamation or libel. Mikaelian v. Drug Abuse Unit, 501 A.2d 721, 1985 R.I. LEXIS 598 (1985).

R.I. Gen. Laws § 9-5-20 did not toll R.I. Gen. Laws § 9-1-14(b) in an employee’s defamation action, based on the employee’s filing of a “John Doe” complaint, because R.I. Gen. Laws § 9-5-20 did not apply, as the employee admitted the employee knew the identity of a detective whose report contained the alleged defamatory statements. Sola v. Leighton, 45 A.3d 502, 2012 R.I. LEXIS 78 (2012).

When an employee was fired after allegedly defamatory statements about the employee in a detective’s report were published, the employee’s defamation claim was time-barred because the employee’s cause of action did not accrue when the employee was fired but when the statements were published, since the employee’s claim was for defamation, rather than for wrongful termination. Sola v. Leighton, 45 A.3d 502, 2012 R.I. LEXIS 78 (2012).

When an employee was fired after allegedly defamatory statements about the employee in a detective’s report were published, the employee’s defamation claim was time-barred because, when the detective’s report allegedly identified the detective’s source as an employee of the hospital where the employee worked, although the source was not so employed, the detective did not fraudulently conceal the employee’s cause of action, as (1) the detective never identified the informant as a hospital employee, so, if the employee thought the informant was a coworker, the employee did not show the detective created that impression, and, (2) regardless of the informant’s identity, the employee knew when the detective published a report containing information the detective learned from the informant, which gave rise to the employee’s cause of action. Sola v. Leighton, 45 A.3d 502, 2012 R.I. LEXIS 78 (2012).

Wrongful Death.

The statutory period for bringing an action pursuant to the Wrongful Death Act is controlled by the provisions of § 10-7-2 and not this section and thus an action must be brought within two years after death. Nascimento v. Phillips Petroleum Co., 115 R.I. 395 , 346 A.2d 657, 1975 R.I. LEXIS 1162 (1975).

Collateral References.

Action by one person for consequential damages on account of injury to another as one for bodily or personal injury within statute of limitations. 108 A.L.R. 525.

Action by passenger against carrier for personal injuries as based on contract or tort, with respect to application to statutes of limitation. 20 A.L.R.2d 331.

Admitting new party after statute of limitations has run. 8 A.L.R.2d 6.

Application of “discovery rule” to postpone running of limitations against action for damages from assault. 88 A.L.R.4th 1063.

Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action — Motor vehicle accident or injury cases: corporations, municipalities, insurers, and employers. 98 A.L.R.6th 93.

Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action — Motor vehicle accident or injury cases: estates, and other or unspecified parties. 99 A.L.R.6th 1.

Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action — Motor vehicle accident or injury cases: individual drivers, parents, owners or lessors, and passengers. 97 A.L.R.6th 375.

Causes of action governed by limitations period in UCC § 2-725. 49 A.L.R.5th 1.

Consent of state to suit against it as affecting right to set up defense of statute of limitations. 42 A.L.R. 1493; 50 A.L.R. 1408.

Death action against municipal corporation as subject to limitations governing wrongful death actions or that governing actions against a municipality for injury to person or property. 53 A.L.R.2d 1068.

Declaratory actions, statute of limitations in relation to. 151 A.L.R. 1076.

Defenses, applicability of statutes of limitation to. 78 A.L.R. 1074.

Discovery of, or opportunity to discover injury as affecting time when statute of limitations commences to run against malpractice action against physician, surgeon, dentist, or similar practitioner. 80 A.L.R.2d 368.

Estoppel to assert limitation statute specifically governing assault and battery. 90 A.L.R.2d 1230.

Estoppel to rely on statute of limitations. 130 A.L.R. 8; 24 A.L.R.2d 1413.

Exceptions which attach to general statute of limitations as applicable to limitation prescribed by statute creating cause of action for death. 132 A.L.R. 292.

Ex contractu actions as included in action for “injury to person” in statutes relating to limitation. 1 A.L.R. 1313; 157 A.L.R. 763.

Failure to comply with statute requiring one involved in automobile accident to stop or report as affecting question as to suspension or tolling statute of limitation. 10 A.L.R.2d 564.

General statute of limitations as affecting time of review, reopening, modification, or reinstatement of workmen’s compensation award. 165 A.L.R. 41.

Liability of school or school personnel for injury to student resulting from cheerleader activities. 25 A.L.R.5th 784.

Limitation applicable to action for personal injury as affecting action for death resulting from injury. 167 A.L.R. 894.

Limitation of negligence action as affected by Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended. 75 A.L.R.2d 1062.

Medical Malpractice: Who are “Health care providers” or the like, whose actions fall within statutes specifically governing actions and damages for medical malpractice. 12 A.L.R. 5th 1.

Personal injury, bar of action for, as affecting action for death resulting from injury. 167 A.L.R. 894.

Preemption, by § 541(a) of Employee Retirement Income Security Act of 1974 (29 USCS § 1144(a)), of employee’s state-law action for infliction of emotional distress. 102 A.L.R. Fed. 205.

Preemption, by National Labor Relations Act (29 USCS § 151 et seq.), of employee’s state-law action for infliction of emotional distress. 103 A.L.R. Fed. 798.

Process statutes as affecting commencement of action within meaning of limitation statute specifically governing assault and battery. 90 A.L.R.2d 1230.

Propriety of amending petition after limitation has run to raise last clear chance issue. 25 A.L.R.2d 254.

Provisional remedy prior to service of summons as stopping or interrupting running of statute of limitations. 119 A.L.R. 1221.

Recovery for emotional distress based on fear of contracting HIV or AIDS. 59 A.L.R.5th 535.

Retrospective application of statute of limitations to actions ex delicto already barred. 67 A.L.R. 303.

Right of foreign corporation to plead statute of limitations. 59 A.L.R. 1336; 122 A.L.R. 1194.

School district, statute of limitations as applicable to actions by or against. 98 A.L.R. 1221.

Scope of limitation statutes specifically governing assault and battery. 90 A.L.R.2d 1230.

Service of process for purpose of statute of limitations, statutory provisions regarding delivery of summons or other process for commencement of action to officer for service as equivalent of. 27 A.L.R.2d 236.

Slander of title, statute of limitation applicable to action for. 131 A.L.R. 837.

Smoking as basis for reduction of damages in personal injury action. 25 A.L.R.5th 343.

State statute of limitation as affecting action or proceeding by federal government or its officials. 61 A.L.R. 412.

Statute of limitations as applicable to action by municipality or other political subdivision in absence of specific provision in that regard. 113 A.L.R. 376.

Statute of limitations: when cause of action arises on action against manufacturer or seller of product causing injury or death. 4 A.L.R.3d 821.

Time from which statute of limitations begins to run against action for wrongful death. 97 A.L.R.2d 1151.

Time limitations on nonstatutory actions for maritime personal injuries. 91 A.L.R.2d 1417.

Tolling of statute of limitations where process is not served before expiration of limitation as affected by statutes defining commencement of action, or expressly relating to interruption of running of limitations. 27 A.L.R.2d 236.

Tort actions, estoppel against defense of statute of limitations in. 77 A.L.R. 1044.

Validity and construction of statute terminating right of action for product-caused injury at fixed period after manufacture, sale, or delivery of product. 30 A.L.R.5th 1.

Violation of statute requiring one involved in accident to stop and render aid as affecting application of statute of limitations. 80 A.L.R.2d 299.

War enactments in United States suspending operation of statute of limitations, validity of. 137 A.L.R. 1440; 140 A.L.R. 1518; 141 A.L.R. 1511.

What statute of limitations applies to action under dramshop or civil damages act. 55 A.L.R.2d 1286.

When limitation period begins to run against cause of action for contracting disease. 11 A.L.R.2d 277.

When statute of limitation commences to run against malpractice action based on leaving foreign substance in patient’s body. 70 A.L.R.3d 7.

Workmen’s compensation acts, applicability of statutes of limitations to action or proceeding under. 16 A.L.R. 462; 40 A.L.R. 495.

9-1-14.1. Limitation on malpractice actions.

Notwithstanding the provisions of §§ 9-1-13 and 9-1-14 , an action for medical, veterinarian, accounting, or insurance or real estate agent or broker malpractice shall be commenced within three (3) years from the time of the occurrence of the incident that gave rise to the action; provided, however, that:

  1. One who is under disability by reason of age and on whose behalf no action is brought within the period of three (3) years from the time of the occurrence of the incident shall bring the action at any time up to twenty-one (21) years of age.
  2. One who is under disability by reason of mental incompetence, or otherwise, and on whose behalf no action is brought within the period of three (3) years from the time of the occurrence of the incident, shall bring the action within three (3) years from the removal of the disability.
  3. In respect to those injuries or damages due to acts of medical, veterinarian, accounting, or insurance or real estate agent or broker malpractice that could not in the exercise of reasonable diligence be discoverable at the time of the occurrence of the incident that gave rise to the action, suit shall be commenced within three (3) years of the time that the act or acts of the malpractice should, in the exercise of reasonable diligence, have been discovered.

History of Section. P.L. 1976, ch. 244, § 8; P.L. 1981, ch. 101, § 2; P.L. 1984, ch. 236, § 1; P.L. 1988, ch. 392, § 1; P.L. 2018, ch. 154, § 1; P.L. 2018, ch. 273, § 1.

Compiler’s Notes.

P.L. 2018, ch. 154, § 1, and P.L. 2018, ch. 273, § 1 enacted identical amendments to this section.

Law Reviews.

2000 Survey of Rhode Island Law, see 6 Roger Williams U. L. Rev. 593 (2001).

Clare M. Harmon, Cases: Civil Procedure. Ho-Rath v. R.I. Hospital, 21 Roger Williams U. L. Rev. 639 (2016).

Brandon Ruggieri, Comment: A Major Change for Minor Victims: A Call to Amend Rhode Island’s Statute of Limitations for Children’s Medical Malpractice Suits, 22 Roger Williams U. L. Rev. 670 (2017).

NOTES TO DECISIONS

Constitutionality.

The legislature’s enactment of this section is not so “purely arbitrary” as to violate the equal protection guarantee of the R.I. Constitution under minimal scrutiny review. Dowd v. Rayner, 655 A.2d 679, 1995 R.I. LEXIS 53 (1995).

This section places a reasonable limit on the parties’ right to have their claims adjudicated by the courts and does not violate the open courts provision of R.I. Const., Art. I, § 5 . Dowd v. Rayner, 655 A.2d 679, 1995 R.I. LEXIS 53 (1995).

In General.

The general disability tolling statute, § 9-1-19 , does not affect or supercede the provisions of this section, which contains its own provisions addressing the effects of any disabilities on limitations of actions. Bakalakis v. Woman & Infants' Hosp., 619 A.2d 1105, 1993 R.I. LEXIS 29 (1993).

Plaintiffs’ claims for alleged professional negligence or other negligent wrongdoing, which were based on or related to professional services that the accountants in question allegedly performed or failed to perform, constituted actions for accounting malpractice; thus, such claims had to be brought within one of the statutory time limits specified in R.I. Gen. Laws § 9-1-14.1 for filing accounting malpractice claims, and the absence of contractual privity between plaintiffs and the accountants in question did not remove such professional-negligence claims from the ambit of the accounting-malpractice statute of limitations. Bowen Court Assocs. v. Ernst & Young, 818 A.2d 721, 2003 R.I. LEXIS 67 (2003).

Applicability.

Plaintiffs’ claims against the corporations sounded in ordinary negligence, not medical malpractice, and were governed by the statute of limitations set forth in the statute, not the one governing medical malpractice. Ho-Rath v. R.I. Hosp., 89 A.3d 806, 2014 R.I. LEXIS 51 (2014).

Trial court did not err in dismissing the parents’ medical malpractice claims brought on behalf of the child 12 years after the child was born with a genetic disorder, as it was outside of the three-year limitations period, although the trial court properly concluded that the child would be able to file suit on her own behalf after she attains majority. Ho-Rath v. R.I. Hosp., 115 A.3d 938, 2015 R.I. LEXIS 63 (2015) (decision under prior law).

Discovery of Wrongful Act.

The statute of limitations barred plaintiffs’ claim for medical malpractice and the wrongful death of plaintiffs’ unborn child, filed eight years following the child’s death, although plaintiffs argued that they had no knowledge of wrongful conduct on defendant’s part until a newspaper article revealed that defendant’s medical license had been recently revoked as a result of malpractice in connection with the death of another infant; had plaintiffs exercised reasonable diligence at the time of their son’s death, any act of alleged negligence on defendant’s part could have been discovered. Trudeau v. Dupre, 640 A.2d 534, 1994 R.I. LEXIS 126 (1994).

The plaintiff’s medical malpractice action could proceed even though filed six years after the alleged malpractice, since during the interim period the plaintiff diligently and persistently sought medical advice and subsequently filed this action within the three-year statute of limitations period following a conclusive diagnosis. Zuccolo v. Blazar, 694 A.2d 717, 1997 R.I. LEXIS 183 (1997).

In a medical malpractice case, it was not error to grant a doctor’s motion for judgment as a matter of law, under R.I. Super. Ct. R. Civ. P. 50 (a)(1), because the suing patient’s action was not filed until the limitations period in R.I. Gen. Laws § 9-1-14.1 had expired, because it was not reasonable for the patient who experienced pain and immobility to wait almost 5 years to see another specialist, even though her workers’ compensation provider had warned her that she risked losing her workers’ compensation if she saw another specialist without its permission, and it did not provide such permission for almost five years. Hanson v. Singsen, 898 A.2d 1244, 2006 R.I. LEXIS 103 (2006).

Discovery date, for purposes of the statute of limitations, was the date that a plaintiff knew or should have known of the “wrongful act” that was the basis of a lawsuit, and exception was made for an undiscoverable act of medical negligence, as the discovery rule applied to a medical malpractice case in which an injury remained latent for years, undiscoverable by the victim, and an injury was latent and potentially undiscoverable when, exercising “reasonable diligence” at the time of the injury, a plaintiff was unable to discover the wrongful act, neglect or default, but, if a reasonable person in similar circumstances should have discovered that the wrongful conduct of the defendant caused her injuries as of some date before the plaintiff alleged that she made this discovery, then the earlier date would be used to start the running of the limitations period. Hanson v. Singsen, 898 A.2d 1244, 2006 R.I. LEXIS 103 (2006).

In a medical malpractice case in which a patient and his wife appealed a district court’s entry of summary judgment in favor of various doctors and others, their claim was time-barred by the three-year statute of limitations in R.I. Gen. Laws § 9-1-14.1(2) [now § 9-1-14.1(3) ]. The statute of limitations started when they were informed that the results of magnetic resonance imaging revealed a previously undiagnosed mass as a cervical tumor, not when, after the patient’s surgery, the cancerous nature of the tumor was discovered. Bustamante v. Oshiro, 64 A.3d 1200, 2013 R.I. LEXIS 77 (2013).

Court could not have determined whether, as a matter of law, reasonable diligence should have uncovered potential wrongdoing by the drug manufacturer prior to October 23, 2006, because it would not have been unreasonable to conclude that as of October 23, 2006, the decedent did not yet have cause to believe she might have had a cause of action against the manufacturer, and the undisputed facts did not show that, while the decedent was aware of an injury due to the drug, she was not in fact conducting reasonable diligence at this time by consulting a series of doctors. Esposito v. Novartis Pharms. Corp., 130 F. Supp. 3d 622, 2015 U.S. Dist. LEXIS 124958 (D.R.I. 2015).

Insurance malpractice case filed in August 2009 was barred by the three-year statute of limitations because the issue of possible malpractice concerning the lack of UM coverage arose in late 2002, when plaintiff insured received the first coverage update, which he failed to read; the insured also received notice of a renewed policy in February 2006 that he failed to read and other coverage updates. The insured failed to exercise the necessary reasonable diligence when he failed to at least peruse the summary pages of the coverage update, and the large reduction in the premium amount should have alerted him to read the declarations page or contact his agent. Faber v. McVay, 155 A.3d 153, 2017 R.I. LEXIS 31 (2017).

Because a client’s breach of contract with fraud claim against an attorney, which centered on the attorney’s attempt to obtain a mortgage modification on behalf of the client, was a legal malpractice claim that arose from a professional relationship, the claim was barred by the three-year statute of limitations for legal malpractice claims. The discovery rule did not save the action because the statute of limitations began to run on the foreclosure date as the client admitted that on that date the client knew that the attorney committed negligence. Broccoli v. Manning, 208 A.3d 1146, 2019 R.I. LEXIS 42 (2019).

Minors.

In the case of minors on whose behalf suit has not been brought within three years of the alleged malpractice, this section permits such individuals up to three years after reaching the age of majority to initiate a suit, but in those cases in which actions have been initiated on behalf of minors, plaintiffs are required to join all potential defendants within three years of the alleged malpractice or be time-barred against those defendants not so joined. Dowd v. Rayner, 655 A.2d 679, 1995 R.I. LEXIS 53 (1995).

Subsection (a) does not allow a minor to amend a pending complaint to include new defendants more than three years after occurrence of the incident that gave rise to the cause of action. Bakalakis v. Woman & Infants' Hosp., 619 A.2d 1105, 1993 R.I. LEXIS 29 (1993).

Negligent Sterilization.

Negligent performance of a sterilization procedure which results in the birth of a child is a tort for which recovery may be allowed. Emerson v. Magendantz, 689 A.2d 409, 1997 R.I. LEXIS 69 (1997).

In an action for negligent sterilization resulting in the birth of a child, plaintiffs would be entitled to recover the medical expenses of the ineffective sterilization procedure, the medical and hospital costs of the pregnancy, the expense of a subsequent sterilization procedure, loss of wages, loss of consortium to the spouse arising out of the unwanted pregnancy, and medical expenses for prenatal care, delivery, and postnatal care. However, no recovery would be allowed for emotional distress arising out of the birth of a healthy child. Emerson v. Magendantz, 689 A.2d 409, 1997 R.I. LEXIS 69 (1997).

Pleadings.

Plaintiff’s contention that her complaint was improperly dismissed because neither R.I. Super. Ct. R. Civ. P. 8 (a) nor R.I. Gen. Laws § 9-1-14.1(2) [now § 9-1-14.1(3) ] required her to plead the discovery rule in her complaint was without merit. Since the complaint disclosed on its face that the claim was barred by the statute of limitations, the statute of limitations defense could be raised on a R.I. Super. Ct. R. Civ. P. 12 (b)(6) motion to dismiss and plaintiff was required to plead the discovery rule. Barrette v. Yakavonis, 966 A.2d 1231, 2009 R.I. LEXIS 31 (2009).

Fact that R.I. Gen. Laws § 9-1-14.1 did not expressly require a party to allege in the complaint that he or she was invoking the discovery rule was of no consequence; the time that the negligence allegedly occurred was a material allegation in the complaint that was subject to R.I. Super. Ct. R. Civ. P. 12 (b)(6) scrutiny. Barrette v. Yakavonis, 966 A.2d 1231, 2009 R.I. LEXIS 31 (2009).

Relation to Mootness Doctrine.

State’s appeal of a judgment denying declaratory relief relating to insurance coverage was moot because the underlying case, which involved a medical malpractice claim, had been resolved in favor of defendants; because a three year statute of limitations applied to medical malpractice actions, it was highly unlikely that any more claims relating to the policies at issue would arise, and, therefore, this case did not fall within the limited exception to the mootness doctrine which allowed review of matters of extreme public importance, which were capable of repetition but which evaded review. State v. Medical Malpractice Joint Underwriting Ass'n, 941 A.2d 219, 2008 R.I. LEXIS 17 (2008).

Standards for Seeking Defendants Subject to Liability.

The reasonable-diligence standard of this section is applicable to the efforts of a plaintiff who seeks to determine potential defendants in a malpractice dispute. It is necessary for a plaintiff to investigate diligently who may or may not have had any exposure to liability during treatment. Dionne v. Baute, 589 A.2d 833, 1991 R.I. LEXIS 63 (1991).

Tolling Provision.

The tolling provision statute, subsection (b) of this section, which assists a plaintiff who is unable in the exercise of reasonable diligence to discover an injury due to medical malpractice, did not apply since the injury was known to the plaintiff, who merely claimed that she did not know the identity of the medicial doctor who might have treated her late husband. Grossi v. Miriam Hosp., 689 A.2d 403, 1997 R.I. LEXIS 49 (1997).

Undiscovered act of negligence was not necessarily an undiscoverable act of negligence for the purposes of tolling the statute of limitations. Hanson v. Singsen, 898 A.2d 1244, 2006 R.I. LEXIS 103 (2006).

Tolling provision did not apply to a patient’s medical malpractice suit with regard to her adding an emergency room doctor to the suit four years after the commencement of the action. Therefore, the patient’s suit was properly dismissed as against that doctor. Foley v. St. Joseph Health Servs., 899 A.2d 1271, 2006 R.I. LEXIS 109 (2006).

Since the tolling provision of R.I. Gen. Laws § 9-1-14.1 remained in existence for the benefit of the child and the parents’ loss of consortium claim was derivative of the child’s malpractice claim, the parents were permitted to avail themselves of the benefit of the statutory tolling period. Ho-Rath v. R.I. Hosp., 115 A.3d 938, 2015 R.I. LEXIS 63 (2015) (decision under prior law).

Collateral References.

Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action — Medical malpractice cases in actions involving hospitals, clinics, and the like. 100 A.L.R.6th 139.

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

Broker’s liability for fraud or misrepresentation concerning development or nondevelopment of nearby property. 71 A.L.R.4th 511.

Effect of fraudulent or negligent concealment of patient’s cause of action on timeliness of action under medical malpractice statute of repose. 19 A.L.R.6th 475.

Gynecological malpractice not involving hysterectomies or oophorectomies. 86 A.L.R.4th 125.

Insurance agents or brokers as professionals or nonprofessionals for purposes of malpractice statutes of limitations. 121 A.L.R.5th 365.

Liability of clinical laboratories for negligence. 19 A.L.R.6th 793.

Liability of hospital or medical practitioner under doctrine of strict liability in tort, or breach of warranty, for harm caused by drug, medical instrument, or similar device used in treating patient. 65 A.L.R.5th 357.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper diagnosis and treatment of mother relating to and during pregnancy. 7 A.L.R.5th 1.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by inadequate attendance or monitoring of patient during and after pregnancy, labor, and delivery. 3 A.L.R.5th 146.

Liability of physician, nurse, or hospital for failure to contact physician or to keep physician sufficiently informed concerning status of mother during pregnancy, labor, and childbirth. 3 A.L.R.5th 123.

Malpractice involving hysterectomies and oophorectomies. 86 A.L.R.4th 18.

Medical malpractice statutes of limitation minority provisions. 71 A.L.R.5th 307.

Physical injury requirement for emotional distress claim based on false positive conclusion on medical test diagnosing disease. 69 A.L.R.5th 411.

Recovery for emotional distress based on fear of contracting HIV or AIDS. 59 A.L.R.5th 535.

Timeliness of action under medical malpractice statute of repose, aside from effect of fraudulent concealment of patient’s cause of action. 14 A.L.R.6th 301.

Veterinarian’s liability for malpractice. 71 A.L.R.4th 811.

When statute of limitations begins to run in dental malpractice suits. 3 A.L.R.4th 318.

9-1-14.2. Limitation of “Agent Orange” or phenoxy herbicides actions.

Notwithstanding any provision of law to the contrary, an action to recover damages for personal injury caused by contact with or exposure to phenoxy herbicides while serving as a member of the armed forces of the United States in Indo-China from January 1, 1962, through March 29, 1973, may be commenced within three (3) years from the date of the discovery of the injury, or within three (3) years from the date when through the exercise of reasonable diligence the cause of the injury should have been discovered, whichever is later.

History of Section. P.L. 1982, ch. 235, § 1.

9-1-14.3. Limitation on legal malpractice actions.

Notwithstanding the provisions of §§ 9-1-13 and 9-1-14 , an action for legal malpractice shall be commenced within three (3) years of the occurrence of the incident which gave rise to the action; provided, however, that:

  1. One who is under disability by reason of age, mental incompetence, or otherwise, and on whose behalf no action is brought within the period of three (3) years from the time of the occurrence of the incident, shall bring the action within three (3) years from the removal of the disability.
  2. In respect to those injuries due to acts of legal malpractice which could not in the exercise of reasonable diligence be discoverable at the time of the occurrence of the incident which gave rise to the action, suit shall be commenced within three (3) years of the time that the act or acts of legal malpractice should, in the exercise of reasonable diligence, have been discovered.

History of Section. P.L. 1988, ch. 212, § 1.

NOTES TO DECISIONS

Applicability.

This section did not apply retroactively to bar a legal malpractice claim that arose six months prior to the time this section became law. Centracchio v. Schechter, 692 A.2d 1200, 1997 R.I. LEXIS 126 (1997).

Because a client’s breach of contract with fraud claim against an attorney, which centered on the attorney’s attempt to obtain a mortgage modification on behalf of the client, was a legal malpractice claim that arose from a professional relationship, the claim was barred by the three-year statute of limitations for legal malpractice claims. The discovery rule did not save the action because the statute of limitations began to run on the foreclosure date as the client admitted that on that date the client knew that the attorney committed negligence. Broccoli v. Manning, 208 A.3d 1146, 2019 R.I. LEXIS 42 (2019).

Accrual of Cause of Action.

An action under this section, based on the failure of counsel in examining the title to certain real estate to disclose the existence of a state tax lien on the property, accrued when the clients became aware of the existence of the lien, although they did not make a payment in order to discharge the lien until almost two years later. Bigden v. Cuculo, 658 A.2d 911, 1995 R.I. LEXIS 169 (1995).

The plaintiff’s malpractice action was time barred and did not fall within the exception created by subsection (b), since the plaintiffs admitted that the alleged acts of negligence occurred, at the latest, more than three years ago, that they had retained outside counsel during the trial in which the negligence allegedly occurred, and that they were present in the courtroom when the trial judge admonished the attorney for his “egregious trial preparation”. Rocchio v. Moretti, 694 A.2d 704, 1997 R.I. LEXIS 179 (1997).

Client’s attorney malpractice action was time-barred because the client’s undisputed admission was that the alleged malpractice was discovered nearly five years before the malpractice action was initiated. Ciambrone v. Coia & Lepore, Ltd., 819 A.2d 207, 2003 R.I. LEXIS 88 (2003).

In a legal malpractice case, amendment of the complaint to add a corporation as an additional plaintiff would have been futile, as the statute of limitations under R.I. Gen. Laws § 9-1-14.3 had run on the corporation’s claim; the claim should have been discovered at the time a state court case in which defendants had represented the corporation was dismissed for failure to prosecute. Harvey v. Snow, 281 F. Supp. 2d 376, 2003 U.S. Dist. LEXIS 15871 (D.R.I. 2003).

Client’s 2005 legal malpractice action against two attorneys was time-barred by the three-year statute of limitations in R.I. Gen. Laws § 9-1-14.3 because the 1999 dismissal of the client’s Pennsylvania complaint put the client on notice of a potential malpractice claim and the end of the attorney-client relationship, also in 1999, marked a point at which all the facts existed from which the client could discover potential acts of malpractice; the client failed to point to any facts that were only discoverable by reviewing his file in 2004. Zanni v. Voccola, 13 A.3d 1068, 2011 R.I. LEXIS 28 (2011).

As there was a genuine factual dispute as to when a client learned of her attorney’s alleged malpractice in not advising her that she could achieve her estate plan without causing two lots to merge, and resolution of this dispute determined whether the client’s claim was time-barred under R.I. Gen. Laws § 9-1-14.3 , or whether it was saved by the discovery rule, § 9-1-14.3 (2), the attorney had not been entitled to summary judgment. Sharkey v. Prescott, 19 A.3d 62, 2011 R.I. LEXIS 59 (2011).

As an attorney’s alleged malpractice in setting up a trust so as to deny his client access to trust principal was discoverable by the client in the exercise of reasonable diligence when the trust was executed, her claim that she did not discover the error until years later was unavailing, and her claim was properly dismissed as time-barred under R.I. Gen. Laws § 9-1-14.3 . Sharkey v. Prescott, 19 A.3d 62, 2011 R.I. LEXIS 59 (2011).

Trial court properly determined claims by a decedent’s heirs against a law firm for legal malpractice were time-barred by the three-year limitation period set forth in R.I. Gen. Laws § 9-1-14.3 because the heirs filed the complaint in 2009 and all the facts used to support their allegations of legal malpractice allegedly occurred between February 3, 1976, and May 1987; the discovery rule exception, § 9-1-14.3 (2), did not toll the limitations period because the heirs were aware of each act listed in the complaint on or before 1987. Mendes v. Factor, 41 A.3d 994, 2012 R.I. LEXIS 51 (2012).

Client’s legal malpractice claims were barred by the three-year statute of limitations because the client retained an attorney sometime in November 2007, and the attorney represented the client until he withdrew in June 2009, but the client did not file her complaint until April 13, 2012. Behroozi v. Kirshenbaum, 128 A.3d 869, 2016 R.I. LEXIS 2 (2016).

Trial court did not err in concluding that the discovery rule did not toll the statute of limitations because a client was clearly aware of facts that would lead her to believe she had a potential malpractice claim; the client continuously questioned the attorney about the adequacy of his representation. Behroozi v. Kirshenbaum, 128 A.3d 869, 2016 R.I. LEXIS 2 (2016).

Since a client’s legal malpractice claims were barred by the three-year statute of limitations, the client’s claim for fraud was also barred by the three-year statute of limitations because the fraud the client alleged arose from her professional relationship with an attorney. Behroozi v. Kirshenbaum, 128 A.3d 869, 2016 R.I. LEXIS 2 (2016).

Reasonable Diligence.

The general rule requires legal malpractice actions to be brought within three years of the acts or omissions constituting the alleged legal malpractice; however, subsection (b) of this section provides an exception if the legal malpractice could not be discovered through the exercise of reasonable diligence at the time of its occurrence. Thus, a client who sought to recover against an attorney hired to collect on a money judgment should, by exercising reasonable diligence, have had notice shortly after hiring another attorney that his interest in the judgment property was clearly a voidable preference; therefore, the subsequent malpractice action was barred by the three-year statute of limitations. Penn-Dutch Kitchens v. Grady, 651 A.2d 731, 1994 R.I. LEXIS 299 (1994).

If the plaintiff had exercised reasonable diligence instead of waiting several months to begin his quest for copies of the pertinent instructions, the plaintiff could have discovered any alleged infirmities in the requested jury instructions, as well as the final jury instructions, well before his receipt of the judge’s instructions. As a result, subsection (b) did not act to extend the commencement date of the three-year statute of limitations. Therefore, the operative date for the purposes of commencing the statute of limitations occurred no later than when the jury returned its verdict at the conclusion of the trial. Guay v. Dolan, 685 A.2d 269, 1996 R.I. LEXIS 267 (1996).

As soon as plaintiffs learned that a deed conveying the property had been recorded, they believed they were wronged because they had not consented to or authorized the sale, and thus they were required to determine what claims they had against the parties involved; plaintiffs could not avoid the three-year statute of limitations or seek application of the discovery-rule exception under R.I. Gen. Laws § 9-1-14.3(2) by faulting their bankruptcy attorneys, and plaintiffs wholly failed to satisfy the reasonable diligence standard of the statute. Fogarty v. Palumbo, 163 A.3d 526, 2017 R.I. LEXIS 96 (2017).

Tolling.

The plaintiff filed suit in federal district court on a date beyond the three-year statutory period. Since the complaint filed in federal district court was itself time barred, its filing could not toll the statute of limitations. Guay v. Dolan, 685 A.2d 269, 1996 R.I. LEXIS 267 (1996).

Collateral References.

Measure and elements of damages recoverable for attorney’s negligence in preparing or conducting litigation—twentieth century cases. 90 A.L.R.4th 1033.

When statute of limitations begins to run in case of dental malpractice. 17 A.L.R.6th 159.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence — View that statute begins to run from time client discovers, or should have discovered, negligent act or omission — Application of rule to conduct of litigation and delay or inaction in conducting client’s affairs. 14 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence — View that statute begins to run from time client discovers, or should have discovered, negligent act or omission — Application of rule to negligent misrepresentation, failure to supervise junior counsel, conflict of interest, billing disputes, and unspecified acts of negligence. 16 A.L.R.6th 653.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence — View that statute begins to run from time client discovers, or should have discovered, negligent act or omission — Application of rule to property, estate, corporate, and document cases. 15 A.L.R.6th 427.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence — View that statute begins to run from time client discovers, or should have discovered, negligent act or omission — Statement of rule and application of rule to providing client with allegedly negligent advice or failing to advise. 13 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence — View that statute begins to run from time of occurrence of negligent act or omission. 11 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence — View that statute begins to run from time of occurrence of sustaining damage or injury and other theories. 12 A.L.R.6th 1.

9-1-14.4. Limitations on home inspector malpractice actions.

Notwithstanding the provisions of §§ 9-1-13 and 9-1-14 , an action against a licensed home inspector for injury or damage arising out of a home inspection shall be commenced within three (3) years of delivery to the client of the written home inspection report giving rise to the action; provided, however, that:

  1. One who is under disability by reason of age, mental incompetence, or otherwise, and on whose behalf no action is brought within the period of three (3) years from the foregoing date of delivery, shall bring the action within three (3) years from the removal of the disability;
  2. In respect to those injuries or damages arising out of a home inspection which could not in the exercise of reasonable diligence be discovered at the time of delivery of the inspection report, suit shall be commenced within three (3) years of the time that the injuries or damages arising out of the home inspection should, in the exercise of reasonable diligence, have been discovered.

History of Section. P.L. 2000, ch. 140, § 3.

9-1-15, 9-1-16. Repealed.

History of Section. C.P.A. 1905, §§ 249, 250; G.L. 1909, ch. 284, §§ 2, 3; G.L. 1923, ch. 334, §§ 2, 3; G.L. 1938, ch. 510, §§ 2, 3; G.L. 1956, §§ 9-1-15 , 9-1-16; P.L. 1960, ch. 147, § 3; Repealed by P.L. 1965, ch. 55, § 7, effective January 10, 1966.

9-1-17. Limitation of actions on contracts or liabilities under seal and on judgments.

The following actions shall be commenced and sued within twenty (20) years next after the cause of action shall accrue and not after: actions on contracts or liabilities under seal; and actions on judgments or decrees of any court of record of the United States, or of any state.

History of Section. C.P.A. 1905, § 251; G.L. 1909, ch. 284, § 4; G.L. 1923, ch. 334, § 4; G.L. 1938, ch. 510, § 4; G.L. 1956, § 9-1-17 ; P.L. 1960, ch. 147, § 3; P.L. 1965, ch. 55, § 6.

NOTES TO DECISIONS

Continuous Performance.

Where a parcel of land was sold subject to certain uses in an action to enforce a bond insuring such uses the statute of limitations could only run from the time of the breach. Middletown v. Newport Hosp., 16 R.I. 319 , 15 A. 800, 1888 R.I. LEXIS 79 (1888).

Contracts Under Seal.

An instrument not required to be under seal does not become an instrument under seal merely by the recital “Witness our hands and seals” without the actual affixing of the seals of the parties. Wallbaum v. Martin, 103 R.I. 10 , 234 A.2d 369, 1967 R.I. LEXIS 569 (1967).

Covenant Against Dower Claims.

A covenant against claims for dower was not breached until the time when a claim was actually made and the statute did not begin to run until such time. Hudson v. Steere, 9 R.I. 106 , 1868 R.I. LEXIS 24 (1868).

Foreclosures.

Despite mortgagee’s failure to file a claim in the probate proceedings, the foreclosure was not time-barred as the 20-year statute of limitations applicable to foreclosures applied and the limitations period associated with the probate claim-filing statute, § 33-11-5 , did not apply. Summers v. Fin. Freedom Acquisition LLC, 807 F.3d 351, 2015 U.S. App. LEXIS 18507 (1st Cir. 2015).

Laches.

The defense of laches may be asserted in civil actions seeking equitable relief notwithstanding the fact that the period fixed by the applicable statute of limitation has not expired. Fitzgerald v. O'Connell, 120 R.I. 240 , 386 A.2d 1384, 1978 R.I. LEXIS 663 (1978).

Mortgage Notes.

A suit to cancel or discharge a mortgage where a personal action on the mortgage note was barred by the statute of limitations, the period of 20 years not having run out, would be dismissed even though there was laches in bringing suit on the mortgage and a loss of evidence due to death of witnesses. Ballou v. Taylor, 14 R.I. 277 , 1883 R.I. LEXIS 59 (1883).

In action on mortgage note where defense was statute of limitations, whether purchaser who did not assume mortgage was acting for mortgagor or for himself in making payments to mortgagee presented question of fact for jury. Baldwin v. Higgins, 68 R.I. 324 , 27 A.2d 345, 1942 R.I. LEXIS 73 (1942).

Partial Payments.

Action of debt on a judgment commenced more than 20 years after its rendition was barred by this section, even though judgment debtor, within the 20-year period, made several part payments on account of such judgment. Garabedian v. Avedisian, 42 R.I. 78 , 105 A. 516, 1919 R.I. LEXIS 8 (1919).

Separate Maintenance Payments.

Claim in probate court based on decree in divorce proceeding awarding wife a specified amount for separate maintenance payable each month was governed by 20-year statute of limitations. Gilbert v. Hayward, 37 R.I. 303 , 92 A. 625, 1914 R.I. LEXIS 47 (1914).

Stockholders’ Liability.

The statute of limitations applicable to stockholders’ liability was this section, allowing 20 years for action of debt on a specialty. Kilton v. Providence Tool Co., 22 R.I. 605 , 48 A. 1039, 1901 R.I. LEXIS 68 (1901).

Collateral References.

Absence of judgment debtor from state as suspending or tolling running of period of limitations as to judgment. 27 A.L.R.2d 839.

Acknowledgment or promise to pay judgment as affecting running of statute of limitations. 45 A.L.R.2d 967.

Ancillary proceedings as suspending or removing bar of statute of limitations as to judgment. 166 A.L.R. 767.

Bonds of municipality or other public body that are invalid, inapplicability of statute of limitations, on theory of trust, to action to recover purchase price paid for. 94 A.L.R. 608.

Bonds or other governmental obligations, effect of running of limitations against enforcement of, as affecting enforceability of statutory provisions that they shall be received in payment of taxes. 100 A.L.R. 1350.

Instalments, debt payable in, statute of limitations as affecting suit to enforce mortgage securing. 153 A.L.R. 787.

Interest on judgment, statute of limitations applicable to. 120 A.L.R. 719.

Judgment entered on unauthorized appearance for defendant by attorney, relief from, where original claim is barred by limitations. 88 A.L.R. 68.

Judgment, new promise as suspending or removing bar of limitations as against. 21 A.L.R. 1059.

Junior encumbrancers or lienors, acknowledgment or new promise by mortgagor or vendee as tolling or removing bar of, statute of limitations as against. 150 A.L.R. 331.

Laches or acquiescence as defense, so as to bar recovery of arrearages of permanent alimony or child support. 5 A.L.R.4th 1015.

Mortgage, acknowledgment of indebtedness on bond or note as tolling statute on mortgage securing same. 41 A.L.R. 822.

Mortgage, assumption of debt by grantee of mortgagor as an acknowledgment thereof, interrupting running of limitations against his liability to the mortgagee. 21 A.L.R. 496; 47 A.L.R. 339.

Mortgage, purchase subject to, as removing or interrupting defense of statute of limitations as against mortgage. 48 A.L.R. 1320.

Setoff as against judgment, of outlawed judgment. 121 A.L.R. 513.

Subrogation in respect to encumbrances paid by third person under mistake or in order to protect his interest in property, as affected by limitations. 43 A.L.R. 1408; 151 A.L.R. 407.

Subrogation of mortgage in forged or unauthorized mortgage, proceeds of which are used to discharge valid lien, interruption of limitations. 43 A.L.R. 1408; 151 A.L.R. 407.

Validity, construction, and application of Uniform Enforcement of Foreign Judgments Act. 31 A.L.R.4th 706.

When statute of limitations commences to run as to cause of action for wrongful discharge. 19 A.L.R.5th 439.

9-1-18. Effect of absence from state on limitations.

If any person against whom there is or shall be cause for any action, as enumerated in this chapter, in favor of a resident of the state, shall at the time the cause accrues be outside the limits of the state, or being within the state at the time the cause accrues shall go out of the state before the action is barred by the provisions of this chapter, and does not have or leave property or estate in the state that can be attached by process of law, then the person entitled to the action may commence the action, within the time before limited, after the person has returned into the state in such a manner that an action may, with reasonable diligence, be commenced against him or her by the person entitled to the action; provided, however, that no action shall be brought by any person upon a cause of action accruing outside this state which was barred by limitation or otherwise in the state, territory, or country in which the cause of action arose while he or she resided in the state.

History of Section. C.P.A. 1905, § 252; G.L. 1909, ch. 284, § 5; P.L. 1909, ch. 457, § 1; G.L. 1923, ch. 334, § 5; G.L. 1938, ch. 510, § 5; G.L. 1956, § 9-1-18 ; P.L. 1997, ch. 326, § 13.

NOTES TO DECISIONS

Applicability.

R.I. Gen. Laws § 9-1-18 did not toll a student’s claims that the handling of his disciplinary proceeding and his removal from campus violated his constitutional rights and Rhode Island state law where the student failed to support his claim of residency, and there was no evidence in the record that any university officials were not amenable to process. Klunder v. Brown Univ., 778 F.3d 24, 2015 U.S. App. LEXIS 1656 (1st Cir. 2015).

Action Arising in Other State.

The last clause of this section is construed as applying generally to all causes of action arising in another state and there barred. De Pietro v. Tarter, 302 F.2d 611, 1962 U.S. App. LEXIS 5366 (1st Cir. 1962).

Attachable Property.

Directed verdict for defendant on ground of statute of limitations was erroneous where there was a question of fact as to whether defendant’s ownership of property left behind during absences from state was so open and notorious as to put plaintiff on inquiry. Personal Fin. Co. v. Franco, 72 R.I. 85 , 48 A.2d 355, 1946 R.I. LEXIS 50 (1946).

Conflict of Laws.

State statute of limitations applied where defendant had lived in state in excess of statutory period though suit was not barred in another state where debt was contracted, due to removal therefrom by defendant. Staples v. Waite, 30 R.I. 516 , 76 A. 353, 1910 R.I. LEXIS 51 (1910).

Guarantor.

The absence from the state of the maker of a promissory note does not bar the operation of the statute in favor of a guarantor who remains within the state. Browning v. Tucker, 9 R.I. 500 , 1870 R.I. LEXIS 14 (1870).

Nonresident Motorist.

Since the nonresident motorist is subject to service and process under §§ 31-7-6 and 31-7-7 , the statute of limitations on personal injury claims is not tolled under this section and the plaintiff must commence an action against the defendant within three years after the action accrues. Rouse v. Connelly, 444 A.2d 850, 1982 R.I. LEXIS 843 (1982).

Return to State.

The word “return” in the last clause before the proviso of this section includes the first entrance of a person into the state. Crocker v. Arey, 3 R.I. 178 , 1855 R.I. LEXIS 27 (1855).

If debtor leaves state during running of the limitation period, but thereafter returns to the state, the return to the state starts a new period of limitations running. Cottrell v. Kenney, 25 R.I. 99 , 54 A. 1010, 1903 R.I. LEXIS 26 (1903).

Collateral References.

Absence of defendant from state as suspending statute of limitations where relief is sought, or could have been sought, by action or proceeding in rem or quasi in rem. 119 A.L.R. 331.

Accommodation party’s action against accommodated party, for reimbursement, as affected by absence of latter from state. 36 A.L.R. 584; 77 A.L.R. 668.

Foreign liability or cause of action, applicability to action on, of provision of limitation statute excluding period of absence of debtor or defendant from state. 148 A.L.R. 732.

Insurance, statute extending time for bringing action against nonresidents as applicable to limitation prescribed by policy or special statutory provision in relation to insurance. 23 A.L.R. 104; 149 A.L.R. 483.

Judgment, absence as suspending or removing bar of limitations as against. 21 A.L.R. 1039.

Motorist, construction and application of statute providing for constructive or substituted service of process on, as affecting statute of limitations. 138 A.L.R. 1468.

Nonresidence of defendant as suspending statute of limitations where relief is sought or could have been sought, by action or proceeding in rem or quasi in rem. 119 A.L.R. 331.

Nonresidence or absence of defendant from state as suspending running of statute of limitations against action to foreclose mortgage or deed of trust. 119 A.L.R. 345.

Office or place of business in the state, provision in statute of limitations as to absence from state as applied to nonresident individual who has. 61 A.L.R. 391.

Plaintiff, nonresidence of, as affecting provision suspending limitations while defendant is a nonresident or out of the state. 83 A.L.R. 271.

Right to enter judgment by confession as affecting suspension of statute of limitations during absence of debtor from state. 172 A.L.R. 997.

Statute of limitations in illegitimacy or bastardy proceedings. 59 A.L.R.3d 685.

Tolling of statute of limitations during absence from state as affected by fact that party claimed benefit of limitations remained subject to service during absence or nonresidence. 55 A.L.R.3d 1158.

What constitutes “fleeing from justice” within meaning of 18 USCA § 3290 which provides that no statute of limitations shall extend to persons fleeing from justice. 148 A.L.R. Fed. 573.

Withdrawal of foreign corporation from state as tolling statute of limitations as to actions against corporation. 133 A.L.R. 774.

9-1-19. Disability postponing running of statute.

If any person at the time any such cause of action shall accrue to him or her shall be under the age of eighteen (18) years, or of unsound mind, or beyond the limits of the United States, the person may bring the cause of action, within the time limited under this chapter, after the impediment is removed.

History of Section. C.P.A. 1905, § 253; G.L. 1909, ch. 284, § 6; G.L. 1923, ch. 334, § 6; G.L. 1938, ch. 510, § 6; G.L. 1956, § 9-1-19 ; P.L. 1988, ch. 107, § 1; P.L. 2001, ch. 237, § 1; P.L. 2001, ch. 407, § 1.

Law Reviews.

Caselaw Survey Section: Statutes of Limitations, see 4 R.W.U.L. Rev. 800 (1999).

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

Brandon Ruggieri, Comment: A Major Change for Minor Victims: A Call to Amend Rhode Island’s Statute of Limitations for Children’s Medical Malpractice Suits, 22 Roger Williams U. L. Rev. 670 (2017).

Tara Gunn, 2016 Survey, Cases: Tort Law: Hyde v. Roman Catholic Bishop of Providence, 22 Roger Williams U. L. Rev. 888 (2017).

NOTES TO DECISIONS

In General.

The general disability tolling statute, this section, does not affect or supercede the provisions of § 9-1-14.1 , which contains its own provisions addressing the effects of any disabilities on limitations of actions. Bakalakis v. Woman & Infants' Hosp., 619 A.2d 1105, 1993 R.I. LEXIS 29 (1993).

Trial court erred in denying the minor’s motion to amend the complaint and add a defendant, as the motion was not untimely filed; even though the underlying lawsuit had been filed by the minor’s parents, R.I. Gen. Laws § 9-1-19 tolled the statute of limitations on personal injury actions, found at R.I. Gen. Laws § 9-1-14(b) , until such time as the impediment, the minor’s age, was removed at age 18 and, thus, the motion to amend to add a party defendant was timely filed because the minor was less than 18-years-old at the time the motion to amend was filed. Rachal v. O'Neil, 925 A.2d 920, 2007 R.I. LEXIS 76 (2007).

Guardianship.

The statute does not run against a person non compos mentis even though he has guardians who might have sued for him. Bourne v. Hall, 10 R.I. 139 , 1872 R.I. LEXIS 2 (1872).

Infancy.

The statute does not preclude minors from suing while under age, even though the suit is brought after the running of the normal period of limitations by a next friend who has not been under disability. Bliven v. Wheeler, 23 R.I. 379 , 50 A. 644, 1901 R.I. LEXIS 151 (1901).

A child’s minority tolls the statute of limitations in actions brought against the state. Bishop v. Jaworski, 524 A.2d 1102, 1987 R.I. LEXIS 467 (1987).

Where an accident suit was filed after a minor achieved majority, service which was not made until seven months later was not effectuated within a reasonable time. O'Donnell v. Twin City Fire Ins. Co., 40 F. Supp. 2d 68, 1999 U.S. Dist. LEXIS 3541 (D.R.I. 1999).

Since the tolling provision of R.I. Gen. Laws § 9-1-14.1(1) remained in existence for the benefit of the child and the parents’ loss of consortium claim was derivative of the child’s malpractice claim, the parents were permitted to avail themselves of the benefit of the statutory tolling period. Ho-Rath v. R.I. Hosp., 115 A.3d 938, 2015 R.I. LEXIS 63 (2015) (decision under prior law).

— Minor as Defendant.

This section 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 (1997).

Negligence Versus Medical Malpractice.

Plaintiffs’ claims against the corporations sounded in ordinary negligence, not medical malpractice, and were governed by the statute of limitations set forth in the statute, not the one governing medical malpractice. Ho-Rath v. R.I. Hosp., 89 A.3d 806, 2014 R.I. LEXIS 51 (2014).

Nonresidence.

Where a creditor is merely located in another state and not without the limits of the United States the provisions of this section would be inapplicable. Staples v. Waite, 30 R.I. 516 , 76 A. 353, 1910 R.I. LEXIS 51 (1910).

Unsound Mind.

The “unsound mind” tolling provision in this section refers to a mental condition that renders a person incompetent or incapable of managing his or her everyday affairs and does not encompass more limited impairments such as a selective inability to recall particular facts or a reluctance to seek legal redress based upon those facts. Smith v. O'Connell, 997 F. Supp. 226, 1998 U.S. Dist. LEXIS 3456 (D.R.I. 1998), aff'd sub nom. Kelly v. Marcantonio, 187 F.3d 192, 1999 U.S. App. LEXIS 18396 (1st Cir. 1999).

A conclusion that “unsound mind” refers to a condition that renders a plaintiff incapable of managing his everyday affairs is consistent with judicial interpretations of the term in other contexts and with the rule of statutory construction that exceptions in statutes of limitations in favor of disabled persons are strictly construed. Kelly v. Marcantonio, 187 F.3d 192, 1999 U.S. App. LEXIS 18396 (1st Cir. 1999).

To establish the disability of unsound mind, for purposes of tolling the statute of limitations, a party must demonstrate an inability to manage one’s day-to-day affairs. Roe v. Gelineau, 794 A.2d 476, 2002 R.I. LEXIS 66 (2002).

While repressed recollection could establish the disability of unsound mind, for purposes of tolling a statute of limitations, an alleged sexual abuse victim did not present sufficient evidence to require a hearing on whether his alleged repressed recollection constituted an unsound mind. Roe v. Gelineau, 794 A.2d 476, 2002 R.I. LEXIS 66 (2002).

The 90-day provision in R.I. Gen. Laws § 28-5-24.1 fell under an exception to the tolling provision in R.I. Gen. Laws § 9-1-19 . Johnson v. Newport County Chapter for Retarded Citizens, Inc., 799 A.2d 289, 2002 R.I. LEXIS 167 (2002).

Where a husband did not file a defamation and malicious prosecution suit for seven years after the husband was arrested for disorderly conduct based on allegations made by the acquaintances, and where the husband did not show that he was of unsound mind when the action accrued in accordance with R.I. Gen. Laws § 9-1-19 , the statutes of limitations in R.I. Gen. Laws § 9-1-14 were not tolled and the acquaintances were entitled to summary judgment. Austin v. Carden, 818 A.2d 662, 2003 R.I. LEXIS 51 (2003).

Plaintiffs’ sexual assault and conspiracy suit against a church and officials was barred by the three-year statute of limitations in R.I. Gen. Laws § 9-1-14(b) because: (1) they filed suit more than 10 years after the statutory period had run; and (2) the statute was not tolled since, inter alia, plaintiffs did not contend that the applicable statute of limitations should be tolled by virtue of the “unsound mind” disability provision. Ryan v. Roman Catholic Bishop, 941 A.2d 174, 2008 R.I. LEXIS 12 , cert. denied, 555 U.S. 955, 129 S. Ct. 422, 172 L. Ed. 2d 305, 2008 U.S. LEXIS 7508 (2008).

When a deceased employee’s widow and the employee’s estate sued the employee’s former employer for breach of contracts to provide health and life insurance and pension benefits, the claims were time-barred because (1) the claims were not filed within ten years of the employer’s answer to plaintiffs’ counsel’s latest letter, and (2) the husband’s “unsound mind” did not toll this time, under R.I. Gen. Laws § 9-1-19 , as the husband’s inability to manage the husband’s daily affairs during the relevant period was not shown. Estate of Frusher v. Abt Assocs., 643 F. Supp. 2d 220, 2009 U.S. Dist. LEXIS 73233 (D.R.I. 2009).

— Repressed Memory.

The inability to recall incidents of sexual abuse may constitute a disability that extends the time within which claims for resulting injury may be brought. The trial court, after hearing and considering expert medical and scientific evidence and opinion, must decide in the first instance, as a matter of law, whether the alleged repressed recollection in a particular case is sufficiently relevant, reliable, and scientifically and/or medically established so as to constitute “unsound mind,” thereby tolling the action limitation period. Kelly v. Marcantonio, 678 A.2d 873, 1996 R.I. LEXIS 187 (1996).

A temporary inability to remember alleged acts of sexual abuse, failure to recognize those acts as tortious, or a difficulty in overcoming a reluctance to “re-live” the matter by initiating legal action did not constitute a condition of “unsound mind” that tolled the period of limitations. Smith v. O'Connell, 997 F. Supp. 226, 1998 U.S. Dist. LEXIS 3456 (D.R.I. 1998), aff'd sub nom. Kelly v. Marcantonio, 187 F.3d 192, 1999 U.S. App. LEXIS 18396 (1st Cir. 1999).

In enacting § 9-1-51 the legislature distinguished unsound mind from repressed recollection. Kelly v. Marcantonio, 187 F.3d 192, 1999 U.S. App. LEXIS 18396 (1st Cir. 1999).

To the extent that prior case law left open the option that repressed recollection, standing alone, could toll the statute of limitations with respect to nonperpetrator defendants, the Supreme Court of Rhode Island now forecloses it and holds that, under R.I. Gen. Laws § 9-1-19 , repressed recollection, in and of itself, is not a viable tolling mechanism against nonperpetrator defendants in childhood sexual abuse cases. In the Supreme Court’s opinion, reading R.I. Gen. Laws §§ 9-1-19 and 9-1-51 together makes it clear that § 9-1-51 sets forth the exclusive means by which the statute of limitations can be tolled based on the repressed recollection of childhood sexual abuse. Hyde v. Roman Catholic Bishop of Providence, 139 A.3d 452, 2016 R.I. LEXIS 85 (2016).

Collateral References.

Appointment of committee for incompetent as affecting running of statute of limitations against him. 86 A.L.R.2d 965.

Bastardy proceedings, time for instituting, as affected by infancy of mother. 155 A.L.R. 42.

Death, applicability of limitations prescribed by statute which creates cause of action for, of general rule as to effect of infancy. 132 A.L.R. 317.

Effect of appointment of legal representative for minor on running of state statute of limitations against minor. 1 A.L.R.6th 407.

Effect of appointment of legal representative for person under mental disability on running of state statute of limitations against such person. 111 A.L.R.5th 159.

Emotional or psychological “blocking” or repression as tolling running of statute of limitations. 11 A.L.R.5th 588.

Finding or return of indictment, or filing of information, as tolling limitation period. 18 A.L.R.4th 1202.

Guardian, appointment of, as affecting running of statute of limitations against infant. 86 A.L.R.2d 965.

Imprisonment of party to civil action as tolling statute of limitations. 77 A.L.R.3d 735.

Insurance, effect of statutory disability of infancy to suspend running of statute of limitations prescribed by policy or by special statutory provision in relation to insurance. 23 A.L.R. 103; 149 A.L.R. 483.

Minority of surviving children as tolling limitation period in state wrongful death action. 85 A.L.R.3d 162.

Necessity of alleging in indictment or information limitation-tolling facts. 52 A.L.R.3d 922.

One wrongfully adjudged or committed as insane as within benefit of provision of statute of limitations allowing time to sue after removal of disability. 166 A.L.R. 960.

Posttraumatic syndrome as tolling running of statute of limitations. 12 A.L.R.5th 546.

Prescription or adverse possession as against one under disability of infancy. 43 A.L.R. 941; 147 A.L.R. 236.

Prescription or adverse possession as against one under disability of mental incompetency. 43 A.L.R. 950; 147 A.L.R. 236.

Removal of disability, right to bring action before, where statute permits bringing suit within specified time after. 109 A.L.R. 954.

Tacking disabilities for purposes of statute of limitations. 53 A.L.R. 1303.

Time of existence of mental incompetency that will prevent or suspend running of statute of limitations. 41 A.L.R.2d 726.

Tolling of state statute of limitations in favor of one commencing action despite existing disability. 30 A.L.R.4th 1092.

Trust property, effect of insanity of cestui que trust on adverse possession by third party or stranger. 2 A.L.R. 50.

Validity and construction of beneficiary’s arrangement for payment to another, as they become due, of sums due under spendthrift trust. 83 A.L.R.3d 1142.

9-1-20. Time of accrual of concealed cause of action.

If any person, liable to an action by another, shall fraudulently, by actual misrepresentation, conceal from him or her the existence of the cause of action, the cause of action shall be deemed to accrue against the person so liable at the time when the person entitled to sue thereon shall first discover its existence.

History of Section. C.P.A. 1905, § 254; G.L. 1909, ch. 284, § 7; G.L. 1923, ch. 334, § 7; G.L. 1938, ch. 510, § 7; G.L. 1956, § 9-1-20 .

Law Reviews.

Caselaw Survey Section: Statutes of Limitations, see 4 R.W.U.L. Rev. 800 (1999).

NOTES TO DECISIONS

Common Law Decision.

If one by fraud conceals a cause of action, the statute begins to run in his favor only when the cause is revealed. Reynolds v. Hennessy, 17 R.I. 169 , 23 A. 639 (1891).

Concealment of Assets.

This section did not apply where assets were fraudulently concealed but only where cause of action is fraudulently concealed. Gilbert v. Hayward, 37 R.I. 303 , 92 A. 625, 1914 R.I. LEXIS 47 (1914).

Concealment of Liability of Party.

Suit by plaintiff against insurer was barred by statute of limitations, notwithstanding that delay was due to misrepresentation by defendant’s agent that suit should be filed against another company. Luft v. Factory Mut. Liability Ins. Co., 53 R.I. 238 , 165 A. 776, 1933 R.I. LEXIS 75 (1933).

Failure of church officials to disclose their knowledge of previous sexual misconduct by priests did not amount to fraudulent concealment for tolling purposes of plaintiffs’ causes of action based on sexual abuse. Smith v. O'Connell, 997 F. Supp. 226, 1998 U.S. Dist. LEXIS 3456 (D.R.I. 1998), aff'd sub nom. Kelly v. Marcantonio, 187 F.3d 192, 1999 U.S. App. LEXIS 18396 (1st Cir. 1999).

Defendant priest’s statements to plaintiffs at the time of abuse that his advances were part of their religious training in sexuality did not amount to fraudulent concealment of causes of action against him, since plaintiffs’ alleged reliance on those statements after they became adults would have been unreasonable as a matter of law. Smith v. O'Connell, 997 F. Supp. 226, 1998 U.S. Dist. LEXIS 3456 (D.R.I. 1998), aff'd sub nom. Kelly v. Marcantonio, 187 F.3d 192, 1999 U.S. App. LEXIS 18396 (1st Cir. 1999).

Even if the hierarchy defendants’ silence qualified as an “actual misrepresentation,” where the plaintiffs did not allege that those defendants’ silence misled them into believing that the alleged sexual abuse did not occur, that it had not been committed by priests, or that it had not resulted in injury to the plaintiffs, but rather argued that the silence concealed from them an additional theory of liability, their argument missed the point that for a cause of action to accrue the entire theory of the case need not be immediately apparent. Kelly v. Marcantonio, 187 F.3d 192, 1999 U.S. App. LEXIS 18396 (1st Cir. 1999).

In a suit brought by a decedent’s widow and daughter alleging that entertainment companies misappropriated the decedent’s theme park idea in 1962 and opened an identical theme park to the public in 1982, plaintiffs’ misappropriation, conversion, copyright infringement, fraud, and quantum meruit claims were time-barred and the companies did not conceal a cause of action from plaintiffs or the decedent. Waters v. Walt Disney World Co., 237 F. Supp. 2d 162, 2002 U.S. Dist. LEXIS 26235 (D.R.I. 2002).

Plaintiffs’ sexual assault and conspiracy suit against a church and officials was barred by the three-year statute of limitations in R.I. Gen. Laws § 9-1-14(b) because: (1) they filed suit more than 10 years after the statutory period had run; and (2) the statute was not tolled since there was no evidence that actual misrepresentations were made by defendants with regard to plaintiffs’ potential civil claims, and their reason for delay was not objectively reasonable. Ryan v. Roman Catholic Bishop, 941 A.2d 174, 2008 R.I. LEXIS 12 , cert. denied, 555 U.S. 955, 129 S. Ct. 422, 172 L. Ed. 2d 305, 2008 U.S. LEXIS 7508 (2008).

Trial justice did not err in denying the victims’ request to seek discovery on their fraudulent concealment tolling theory under this section, as neither the Catholic bishop’s silence, threats of excommunication, nor attempts to conceal the child abuse established that the bishop misled the alleged victims into believing that no cause of action existed. Hyde v. Roman Catholic Bishop of Providence, 139 A.3d 452, 2016 R.I. LEXIS 85 (2016).

Terminated employee’s claims against his former employer—pertaining to the employer installing tracking software on the employee’s work computer—were barred by the three-year statute of limitations; there was no fraudulent concealment, as no one at the employer made an express factual misrepresentation to the employee that tracking software had not been installed on the work computer. Boudreau v. Automatic Temperature Controls, Inc., 212 A.3d 594, 2019 R.I. LEXIS 108 (2019).

Corporate Directors.

Suit against bank directors for mismanagement was barred where directors had left the board more than the statutory period prior to proceeding, and where cause of action should have been discovered very early in the ordinary course of business of the banks. Curtis v. Metcalf, 259 F. 961, 1919 U.S. Dist. LEXIS 1138 (D.R.I. 1919), aff'd, 264 F. 650, 1920 U.S. App. LEXIS 1298 (1st Cir. 1920).

Fraud as to Intent to Settle.

Plaintiff was barred by statute of limitations where she did not commence action for personal injuries until after expiration of statute and where defendant’s agents said nothing to induce her to so refrain and did not fraudulently conceal the cause of action, even though they hinted settlement possibilities. Kenyon v. United E. Ry., 51 R.I. 90 , 151 A. 5, 1930 R.I. LEXIS 53 (1930).

No Fraudulent Concealment.

In a wrongful conviction case, because the officer’s failure to file a police report could not amount to fraudulent concealment, as fraudulent concealment required an actual misrepresentation that was more than mere silence or inaction, and an investigator’s deposition testimony did not reflect that any actual misrepresentation was made with respect to the existence of witnesses or with respect to the officer having interviewed witnesses, the three-year statute of limitations was not tolled under this section. Polanco v. Lombardi, 231 A.3d 139, 2020 R.I. LEXIS 56 (2020).

Reliance Required.

Reliance is required under this statute, because it is an essential element of fraud. Kelly v. Marcantonio, 187 F.3d 192, 1999 U.S. App. LEXIS 18396 (1st Cir. 1999).

Collateral References.

Agent, commencement of running of statute of limitations against action by principal to recover money or other property from, as affected by ignorance, concealment, etc. 141 A.L.R. 361.

Application of limitation statute to nonderivative suit based on fraud or breach of trust by corporate officers or directors. 174 A.L.R. 1217.

Building, when statute of limitations commences to run against action based on fraud in construction, repair or equipment of. 150 A.L.R. 778.

Burden of proof as to time of discovery of fraud. 118 A.L.R. 1011.

Concealment of property which will prevent running of statute of limitations. 173 A.L.R. 576.

Consortium, fraudulent concealment as affecting time when statute of limitations begins to run against action for. 173 A.L.R. 750.

Duress or undue influence as tolling or suspending statute of limitations. 121 A.L.R. 1294; 143 A.L.R. 596; 158 A.L.R. 1432; 167 A.L.R. 303.

Fraud, action on implied contract arising out of, as within statutes of limitation applicable to fraud. 3 A.L.R. 1603.

Fraud and deceit, action for, after time for legal remedy on judgment has expired. 104 A.L.R. 214.

Fraud, misrepresentation, or deception as estopping reliance on nonmedical malpractice statues of repose. 98 A.L.R.6th 417.

Judgment debtor, fraud of, in concealing assets or misrepresenting his financial condition as affecting failure to issue execution or revive judgment within statutory period. 104 A.L.R. 214.

Life insurance premiums, limitation of actions predicated upon debtor’s payment in fraud of creditors. 138 A.L.R. 789.

Nonexhaustion of other legal remedies that might obviate or make certain amount of actual damages from fraud as suspending running of limitations against action based on fraud. 128 A.L.R. 762.

Public records as constructive notice as regards action predicated upon fraudulent misrepresentation or concealment, so as to start the running of the statute of limitations against the bringing of such action. 152 A.L.R. 461.

Public records as notice of facts starting the running of statute of limitations based on fraud. 137 A.L.R. 268.

Release, action which seeks to avoid, because of fraud or mistake and recover on original cause, or for loss of value of original cause, as barred by expiration of time within which action could have been brought on original cause of action if not released. 120 A.L.R. 1500.

Restatement of fraudulent statements or reassurance of truth of original statements, after the other party had actual or constructive knowledge of their falsity, as excusing latter’s delay in bringing action or asserting counterclaim based thereon. 107 A.L.R. 589.

Stolen property, or property otherwise wrongfully taken, fraudulent concealing as affecting running of limitations against action to recover, or for conversion of. 136 A.L.R. 658.

Time of discovery of defamation as determining accrual of action. 35 A.L.R.4th 1002.

Undisclosed principal, concealment of fact that party to contract was acting for, as fraud which will toll statute of limitations. 114 A.L.R. 864.

What constitutes concealment which will prevent the running of statute of limitations. 173 A.L.R. 576.

9-1-21. Effect of death of party on statute of limitations.

If any person, for or against whom any causes of action enumerated in this chapter accrue, dies before the time limited for bringing action, or within sixty (60) days after the expiration of that time, and the cause of action survives, the action may be commenced by or against the executor or administrator of the deceased person, as the case may be, at any time not more than one year after the appointment of the executor or administrator of the person so dying, and not afterwards, if barred by the provisions of this chapter; provided, however, that any such action shall be brought within three (3) years after the death of the person and not after.

History of Section. C.P.A. 1905, § 255; G.L. 1909, ch. 284, § 8; G.L. 1923, ch. 334, § 8; G.L. 1938, ch. 510, § 8; G.L. 1956, § 9-1-21 ; P.L. 1984, ch. 410, § 1; P.L. 1997, ch. 326, § 14.

NOTES TO DECISIONS

Applicability.

The special statute of limitations, § 33-11-48 , and this section do not apply to actions that are pending prior to the death of a party. Hopp v. C.H.B. Dev. Corp., 669 A.2d 1152, 1996 R.I. LEXIS 4 (1996).

Neither Super. Ct. R. Civ. P. Rules 17 nor 25 applied in circumstances in which a complaint was brought in the name of a deceased person; the appropriate procedure to be utilized in that situation is contained in this section. Gregory v. DiCenzo, 713 A.2d 772, 1998 R.I. LEXIS 229 (1998).

Application for Administration.

A creditor has one year from the death of his debtor in which to apply for administration in his debtor’s estate provided his claim would not then be barred by the general statute of limitations. Borges v. Cory, 78 R.I. 425 , 82 A.2d 833, 1951 R.I. LEXIS 96 (1951).

Claim Disallowed Out of Time.

Where the administrator of an estate is granted permission by the probate court to disallow a claim out of time, the general statute of limitations for suit on such disallowed claim is suspended from the time the administrator should have filed it to the time he actually did file it. Borges v. Cory, 78 R.I. 425 , 82 A.2d 833, 1951 R.I. LEXIS 96 (1951).

Where an action was filed after the death of the named party plaintiff, and a motion to amend the complaint to substitute the executor as the proper party was not filed until more than one year after the appointment of the executor, the trial justice was without authority to grant the motion. Gregory v. DiCenzo, 713 A.2d 772, 1998 R.I. LEXIS 229 (1998).

Claim Filed in Time.

If a creditor fails to sue the personal representative of his debtor within one year after death of debtor, and general statute of limitations runs in the meantime, the claim is barred even though it may have been properly filed as a claim against the estate. MacNeill v. Gallagher, 24 R.I. 490 , 53 A. 630, 1902 R.I. LEXIS 104 (1902).

The general two-year limitation is not a bar to the action where a tort claim is timely filed against the tort-feasor’s estate and suit is filed within six months of disallowance of the claim. Borges v. Cory, 78 R.I. 425 , 82 A.2d 833, 1951 R.I. LEXIS 96 (1951).

Collateral References.

Application and limits of rule that death of person liable does not interrupt running of statute of limitations. 174 A.L.R. 1423.

Death of creditor, to whom must payment be made in order to toll statute of limitations after. 117 A.L.R. 224.

Delay in procuring appointment of personal representative of deceased or of person causing his death in event of latter’s death, as extending period for bringing an action for death. 70 A.L.R. 472.

Delay of claimant, after filing claim against decedent’s estate, to press its establishment or enforcement. 100 A.L.R. 241.

Executors and administrators, doctrine of relation back of letters as affecting acknowledgment of debt to take it out of statute of limitations. 26 A.L.R. 1367.

Partner deceased, applicability of statute of limitations as between estate of, and surviving partner. 96 A.L.R. 441; 157 A.L.R. 1115.

Partner or joint adventurer, limitation of time for action against, for profits earned subsequently to death or dissolution. 80 A.L.R. 96; 55 A.L.R.2d 1391.

Partnership, claim that surviving partner is trustee as affecting applicability of statute of limitations as between him and estate of deceased partner. 94 A.L.R. 448; 157 A.L.R. 1117.

Partnership creditor’s suit against estate of deceased partner. 61 A.L.R. 1435.

Statute of limitations: Effect of delay in appointing administrator or other representative on cause of action accruing at or after death of person in whose favor it would have accrued. 28 A.L.R.3d 1141.

Tort claim as within nonclaim statutes. 22 A.L.R.3d 493.

Waiver or tolling of statute of limitations by executor or administrator. 8 A.L.R.2d 660.

9-1-22. Extension of time after termination of action.

If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or if he or she dies and the claim survives, his or her executor or administrator, may commence a new action upon the same claim within one year after the termination.

History of Section. C.P.A. 1905, § 256; G.L. 1909, ch. 284, § 9; P.L. 1911, ch. 684, § 1; G.L. 1923, ch. 334, § 9; G.L. 1938, ch. 510, § 9; G.L. 1956, § 9-1-22 ; P.L. 1965, ch. 55, § 6.

Cross References.

Relief from judgment or order, Super. Ct. R. Civ. P. 60 (b).

NOTES TO DECISIONS

Action Against Public Officer.

In action against town treasurer, the failure to summon in the new town treasurer for the space of one year worked an abatement, but plaintiff would have one year from the abatement of first action within which a subsequent action could be brought. Whitford v. Palmer, 38 R.I. 53 , 94 A. 495, 1915 R.I. LEXIS 31 (1915).

Application of Rules.

Being the more specific of the two rules, Superior Court Rule of Civil Procedure 4(l) trumps Rule 41(b)(2) with regard to the former rule’s mandate that a dismissal for untimely service of process should be without prejudice unless the offending party can establish good cause for such a failure to effectuate timely service of process. Jackson v. Medical Coaches, 734 A.2d 502, 1999 R.I. LEXIS 158 (1999).

Arrested Judgment.

Where the judgment was arrested upon motion of the defendant and thereafter plaintiff commenced his action as soon as he reasonably could after the judgment was arrested, the suit was no continuation of the suit in which judgment was arrested, in the sense in which the term continuation is used under the general statutes of limitation. Brown v. Roger Williams Ins. Co., 7 R.I. 301 , 1862 R.I. LEXIS 28 (1862).

Commencement of Original Action.

An action is “duly commenced” (which words were used instead of “timely commenced” prior to 1965 amendment) within the meaning of this section if the plaintiff in good faith issues the first writ within the time limits of the general statute of limitations, the defendant is described as of a jurisdiction last known to the plaintiff as his place of residence, and the plaintiff delivers the writ to an authorized officer within that jurisdiction for service. Eaton v. Chapin, 7 R.I. 408 , 1963 R.I. LEXIS 1 (1963).

To claim the benefit of this section, it is not necessary for the plaintiff to allege facts to show that the first writ was issued and served in accordance with law but the allegation of service of summons implies that it was properly served. Eaton v. Chapin, 7 R.I. 408 , 1963 R.I. LEXIS 1 (1963).

Commencement of Period.

In the case of inability to serve process, the one-year period commences when the writ expires. Orray Taft & Co. v. Daggett, 6 R.I. 266 , 1859 R.I. LEXIS 41 (1859).

When a plaintiff is defaulted and a nonsuit is entered, the year limited for bringing a new action begins to run from the day of actual entry of judgment. Giarrusso v. Brown & Sharpe Mfg. Co., 72 R.I. 229 , 50 A.2d 72, 1946 R.I. LEXIS 68 (1946).

— Action Prematurely Brought.

Because an action was filed within the statute-of-limitations period and was abated or dismissed as prematurely brought, its dismissal was not one on the merits, and under this section the plaintiff had one year from the date of its termination in which to bring the action again. Serpa v. Amaral, 635 A.2d 1196, 1994 R.I. LEXIS 15 (1994).

Commencement of Subsequent Action.

Where the complainant’s attorney purposely changed the date of a writ and its return day after its return unserved, this did not constitute the commencement of a new action after abatement. Byron v. Great American Indem. Co., 54 R.I. 405 , 173 A. 546, 1934 R.I. LEXIS 104 (1934).

Continuing Process From Term to Term.

There is no provision in Rhode Island for indefinitely postponing the bar raised by the general statute of limitations by continuing the process issued from term to term of court. Orray Taft & Co. v. Daggett, 6 R.I. 266 , 1859 R.I. LEXIS 41 (1859).

Decedents’ Estates.

This section applied to allow a new action after the expiration of the special period of limitations in G.L. 1938, ch. 578, § 11 (§ 33-11-48 ). McLaughlin v. Dunlop, 70 R.I. 155 , 37 A.2d 779, 1944 R.I. LEXIS 29 (1944).

Dismissal for Failure to Present Claim.

Plaintiff ’s failure to file the presentment of claim pursuant to § 45-15-5 in their personal injury claim against defendant municipality did not result in the action having not been timely filed within the period of the statute of limitations since the failure to file a presentment of claim is a matter of defense. Accordingly, since the action was filed within the period limited by the applicable statute of limitation but dismissed for failure to file a presentment of claim, plaintiff ’s had the benefit of this section, which would authorize them to bring another action within a year after the termination of the first action. Blessing v. South Kingstown, 626 A.2d 204, 1993 R.I. LEXIS 165 (1993).

Dismissal Without Prejudice.

A party to an action terminated without prejudice may commence a new action within one year of the termination, although where an appeal is taken from a dismissal without prejudice the action will not be finally terminated until the supreme court renders a decision on that appeal. Pilot's Point Marina, Inc. v. Cazzani Power Boat Mfg., Inc., 745 A.2d 782, 2000 R.I. LEXIS 34 (2000).

Where a plaintiff’s initial claim is dismissed for insufficient service of process pursuant to R.I. Super. Ct. R. Civ. P. 4 (l), and not for lack of prosecution under R.I. Super. Ct. R. Civ. P. 4 1 (b), the plaintiff’s claim is protected by R.I. Gen. Laws § 9-1-22 . Furtado v. Laferriere, 839 A.2d 533, 2004 R.I. LEXIS 7 (2004).

Estoppel.

A plaintiff seeking to avoid the defense of the statute of limitations should have a reasonable opportunity to raise by an appropriate pleading the issue of whether a defendant should be estopped from asserting that defense. Wolf v. S. H. Wintman Co., 92 R.I. 470 , 169 A.2d 903, 1961 R.I. LEXIS 57 (1961).

A defendant may be estopped from pleading the statute of limitations on the ground that representations were made for the purpose of inducing the plaintiff to rely thereon when the plaintiff did in fact so rely on the representations to his injury. Wolf v. S. H. Wintman Co., 92 R.I. 470 , 169 A.2d 903, 1961 R.I. LEXIS 57 (1961).

Failure of Original Action.

A plaintiff is entitled to bring another action within the time limits specified in this section when his original action was defeated and abated for want of attachable property in the hands of defendant’s trustee. Clarke v. Farnum, 7 R.I. 519 , 1863 R.I. LEXIS 24 (1863).

Under the provisions of this section in order for the plaintiff to bring a new action after the period of limitation has elapsed he must allege and prove that his failure was without fault on his part. Robinson v. Merchants' & Miners' Transp. Co., 16 R.I. 637 , 19 A. 113, 1889 R.I. LEXIS 80 (1889).

Words “abated,” “avoided” and “defeated” in this section prior to 1965 amendment referred to a decision adverse to plaintiff which did not amount to a determination of the action on the merits. Wolf v. S. H. Wintman Co., 91 R.I. 127 , 161 A.2d 411, 1960 R.I. LEXIS 67 (1960).

Forum of Original Action.

This section is only applicable to actions filed within the same jurisdiction within the period of the controlling statute of limitations and has no application when the original suit is brought in another jurisdiction, such that a plaintiff had no right to begin a new action upon her claim for personal injuries within one year after the dismissal of a Massachusetts action based upon the same occurrence. Goyette v. Suprenant, 622 A.2d 1001, 1993 R.I. LEXIS 100 (1993).

Insurance Policies.

This section did not apply to an action on an insurance policy that contained its own limitation clause but no provision similar to this section. Brown v. Roger Williams Ins. Co., 7 R.I. 301 , 1862 R.I. LEXIS 28 (1862).

Nonsuits.

Nonsuits are included in this section, though not specifically mentioned, if the merits have not been determined. Pesce v. Mondare, 30 R.I. 247 , 74 A. 913, 1910 R.I. LEXIS 8 (1910); Sullivan v. John R. White & Son, 36 R.I. 488 , 90 A. 738, 1914 R.I. LEXIS 31 (1914).

If plaintiff files an exception to a nonsuit but later withdraws the exception, he is not barred from instituting a new suit within one-year period. Sullivan v. John R. White & Son, 36 R.I. 488 , 90 A. 738, 1914 R.I. LEXIS 31 (1914).

A voluntary nonsuit in a preceding action would not bar action brought within time limited by statute. Monroe v. Lavimodiere, 50 R.I. 95 , 145 A. 305, 1929 R.I. LEXIS 22 (1929).

Judgment on nonsuit on grounds of contributory negligence in prior negligence action between same parties on same accident was not res adjudicata to later action under this section. Hayman v. Union Corp., 66 R.I. 11 , 17 A.2d 30, 1940 R.I. LEXIS 3 (1940).

Parties to Action.

This section is not applicable in the case of a defendant who was a stranger to the original action. Luft v. Factory Mut. Liability Ins. Co., 51 R.I. 452 , 155 A. 526, 1931 R.I. LEXIS 73 (1931), overruled in part, Frazier v. Liberty Mut. Ins. Co., 229 A.3d 56, 2020 R.I. LEXIS 44 (2020).

Superior court erred in holding that the statute of limitations barred a customer’s claim for personal injuries that arose from a fall on an insured’s property, where the customer’s first suit against the insured was dismissed and then the customer substituted the insurer under § 27-7-2 in the second suit. The savings statute, § 9-1-22 , was applicable since the insurer and the insured in this case shared a sufficient commonality of interest to consider them sufficiently linked under the savings statute; and the insurer was aware of the lawsuit, as it had dispatched lawyers to ask the court to dismiss the first action on grounds of inadequate service of process on its insured. Frazier v. Liberty Mut. Ins. Co., 229 A.3d 56, 2020 R.I. LEXIS 44 (2020).

Luft v. Factory Mut. Liability Co., 51 R.I. 452 , 155 A. 526 (1931), is overruled to the extent it is inconsistent with this opinion. Frazier v. Liberty Mut. Ins. Co., 229 A.3d 56, 2020 R.I. LEXIS 44 (2020).

Res Judicata.

Where action for damages was based on breach of implied warranty and defendant was granted directed verdict because of absence of evidence of privity of contract such judgment was res judicata of all issues and new suit could not be brought under this section. Wolf v. S. H. Wintman Co., 91 R.I. 127 , 161 A.2d 411, 1960 R.I. LEXIS 67 (1960).

Same Cause of Action.

A count in the new action setting forth an additional ground of negligence as the cause of the same injury does not amount to the statement of a new cause of action. O'Brien v. M & P Theatres Corp., 72 R.I. 289 , 50 A.2d 781, 1947 R.I. LEXIS 4 (1947).

Where, in action of assumpsit for damages a directed verdict was rendered for defendant, a new action of trespass on the case for damages, thereafter brought by plaintiff, did not amount to “a new action for the same cause” and could not be saved from statute of limitations by this section. Wolf v. S. H. Wintman Co., 91 R.I. 127 , 161 A.2d 411, 1960 R.I. LEXIS 67 (1960).

Summary Judgment.

Arrestee’s 42 U.S.C.S. § 1983 claim for false arrest against a police officer could not be dismissed as untimely under R.I. Gen. Laws § 9-1-14(b) at the summary judgment stage because it was unclear whether the arrestee’s state court action against the police officer was ever commenced and whether the arrestee’s state court action was terminated in a manner qualifying him for an extension under the savings provision in R.I. Gen. Laws § 9-1-22 . Bibby v. Petrucci, 2009 U.S. Dist. LEXIS 113573 (D.R.I. Dec. 4, 2009).

Voluntary Discontinuance.

Where prior action on same cause was voluntarily discontinued by the plaintiff, this section would not allow commencement of new action since discontinuance was voluntary. Gray v. Ahern, 63 R.I. 363 , 9 A.2d 38, 1939 R.I. LEXIS 108 (1939).

Where plaintiff’s dismissal of her district court suit was voluntary, she was not allowed to recommence the action after the running of the statute of limitations applicable to her original action, as this section does not apply in favor of a plaintiff who abandons an action for no other cause than his own will or choice. Di Iorio v. Abington Mut. Fire Ins. Co., 121 R.I. 689 , 402 A.2d 745, 1979 R.I. LEXIS 2048 (1979).

Consent judgment that was agreed to by plaintiff ’s counsel acting with apparent authority was “voluntary” and “a final judgment upon the merits” within the meaning of this section, notwithstanding plaintiff ’s contention that counsel had entered into the judgment stipulation without his knowledge or consent. D'Amario v. Butler Hosp., 921 F.2d 8, 1990 U.S. App. LEXIS 21252 (1st Cir. 1990), cert. denied, 501 U.S. 1223, 111 S. Ct. 2840, 115 L. Ed. 2d 1008, 1991 U.S. LEXIS 3499 (1991).

Merely because the plaintiff filed a state court complaint prior to voluntarily dismissing its federal complaint does not mean that the cause of action is preserved when the state court action is untimely. Massachusetts Mut. Life Ins. Co. v. Strickland, 667 A.2d 1267, 1995 R.I. LEXIS 273 (1995).

Worker’s Compensation.

This section has no application to a petition under the Workmen’s Compensation Act seeking to recover for injuries. The limitation governing workmen’s compensation claims which is fixed by special provisions of the Workmen’s Compensation Act. Menna v. Mathewson, 48 R.I. 310 , 137 A. 907, 1927 R.I. LEXIS 88 (1927).

Collateral References.

Applicability, as affected by change in parties, of statute permitting commencement of new action within specified time after failure of prior action not on merits. 13 A.L.R.3d 848.

Application to period of limitations fixed by contract, of statute permitting new action to be brought within specified time after failure of prior action for cause other than on the merits. 16 A.L.R.3d 452.

Character or kind of action or proceeding within operation of statute permitting new action after limitation period, upon failure of timely action. 79 A.L.R.2d 1309.

Character or kind of action or proceeding within operation of statute which permits new action after expiration of period of limitation, upon failure of previous action commenced within the period. 120 A.L.R. 376; 79 A.L.R.2d 1309.

Death, applicability to limitations prescribed by statute creating cause of action for, of general rule as to right to maintain new action after failure of prior action. 132 A.L.R. 325.

Defective pleading as within proviso or saving clause permitting new action after failure of previous action notwithstanding general limitation period has run. 77 A.L.R. 495.

Determination of beginning of period allowed by statute for commencement of new action after failure, otherwise than on the merits, of action timely begun. 79 A.L.R.2d 1270.

Effect of statute permitting new action to be brought within specified period after failure of original action other than on the merits to limit period of limitations. 13 A.L.R.3d 979.

Insurance, applicability to limitation prescribed by policy or by special statutory provision in relation to insurance of provisions of statute of limitations extending time for new action where first action has failed. 23 A.L.R. 99; 149 A.L.R. 483.

New cause of action as stated by amendment, after limitation period, of allegations of negligence. 171 A.L.R. 1087.

Parties, applicability, as affected by, of statute permitting new action brought within specified time after failure of prior action for cause other than merits. 13 A.L.R.3d 848.

Period within which new action may be commenced after nonsuit or judgment not on merits. 83 A.L.R. 478.

State statute permitting new action within specified time after judgment or decree not on merits in a previous action, as applicable where either the first action or the new action was brought in or removed to a federal court. 156 A.L.R. 1097.

Statute forbidding suit against representative of estate until expiration of prescribed period as affecting running of statute of limitations. 104 A.L.R. 901.

Statute permitting new action, after failure of original action commenced within period of limitation, as applicable in cases where original action fails for reasons relating to the writ or process or service thereof. 142 A.L.R. 1184.

Statute permitting new action, after failure of original action timely commenced, as applicable where original action was filed in another state. 55 A.L.R.2d 1038.

Successive actions as within statutory provision fixing time within which new action may be commenced after nonsuit or judgment not on merits. 54 A.L.R.2d 1229.

Theory upon which defendant is sought to be held responsible for another’s wrong, amendment of pleading by changing allegations as to. 74 A.L.R. 1281.

Time within which personal representative must commence action for refund of legacy or distribution. 29 A.L.R.2d 1248.

Tolling of statute of limitations where process is not served before expiration of limitation period as affected by statutes defining commencement of action or expressly relating to interruption of running of limitations. 27 A.L.R.2d 236.

Variance, effect of proving case not pleaded where amendment is barred by limitations. 29 A.L.R. 638.

What amounts to a nonsuit within statute extending time for new action in case of nonsuit. 86 A.L.R. 1048.

9-1-23. Effect of joinder of counts on limitation.

Whenever counts are joined in the same complaint, the limitations of time for commencing suit applicable to the cause of action set out in any count shall be the same as if the action was brought on the count only, and the limitation may be pleaded to that count instead of to the entire action.

History of Section. C.P.A. 1905, § 257; G.L. 1909, ch. 284, § 10; G.L. 1923, ch. 334, § 10; G.L. 1938, ch. 510, § 10; G.L. 1956, § 9-1-23 ; P.L. 1965, ch. 55, § 6.

9-1-24. Special limitations provisions unaffected.

The provisions of §§ 9-1-14 9-1-23 shall not apply to any case in which a different time is limited by special provisions.

History of Section. C.P.A. 1905, § 257; G.L. 1909, ch. 284, § 10; G.L. 1923, ch. 334, § 10; G.L. 1938, ch. 510, § 10; G.L. 1956, § 9-1-24 .

NOTES TO DECISIONS

Worker’s Compensation Act.

By virtue of this section, G.L. 1923, ch. 334, § 9 (§ 9-1-22 ) did not apply to a proceeding under the Workmen’s Compensation Act. Menna v. Mathewson, 48 R.I. 310 , 137 A. 907, 1927 R.I. LEXIS 88 (1927).

9-1-25. Time for bringing suit against state, political subdivision, city, or town.

  1. Except as provided in subsection (b) of this section and in § 9-1-51 , for cases of sexual abuse, when a claimant is given the right to sue the state of Rhode Island, any political subdivision of the state, or any city or town by a special act of the general assembly, or in cases involving actions or claims in tort against the state or any political subdivision thereof or any city or town, the action shall be instituted within three (3) years from the effective date of the special act, or within three (3) years of the accrual of any claim of tort. Failure to institute suit within the three-year (3) period shall constitute a bar to the bringing of the legal action.
  2. In cases of childhood sexual abuse, the time for bringing suit against the state of Rhode Island or any other entity identified in subsection (a) of this section, § 9-1-51 shall apply.

History of Section. P.L. 1960, ch. 191, § 1; P.L. 1970, ch. 181, § 1; P.L. 1974, ch. 188, § 1; P.L. 1984, ch. 84, § 1; P.L. 2019, ch. 82, § 1; P.L. 2019, ch. 83, § 1.

Compiler’s Notes.

P.L. 2019, ch. 82, § 1, and P.L. 2019, ch. 83, § 1 enacted identical amendments to this section.

NOTES TO DECISIONS

In General.

The effect of the 1974 amendment (P.L. 1974, ch. 188, § 1) is prospective only, and causes of action which accrued prior to the effective date of the amendment continue to be governed by the former one-year statute of limitations. Skaba v. Capasso, 117 R.I. 512 , 368 A.2d 570, 1977 R.I. LEXIS 1719 (1977).

Even though plaintiff’s claim would have been barred by the two-year statute of limitations in effect at the time her suit was filed, P.L. 1984, ch. 84, § 2 made the three-year statute of limitations applicable to her claim thereby reviving it. Dandeneau v. Board of Governors for Higher Educ., 491 A.2d 1011, 1985 R.I. LEXIS 498 (1985).

Summary judgment dismissal of a suit by homeowners who were challenging a town’s allegedly negligent repaving of a road was proper where the action was brought more than three years after the repaving work was completed. West v. Town of Narragansett, 857 A.2d 764, 2004 R.I. LEXIS 170 (2004).

Civil Rights Actions.

An action under 42 U.S.C. § 1983 against a Rhode Island municipality is governed by the general three-year limitation period on actions for injuries to the person in § 9-1-14 and not the two-year limitation period on actions against municipalities in this section. Pearman v. Walker, 512 F. Supp. 228, 1981 U.S. Dist. LEXIS 11727 (D.R.I. 1981).

Claims Barred.

Because the action was filed on October 26, 2007, more than three years after the causes of action for plaintiffs had accrued, this section applied to bar the new claims of plaintiffs and the hearing justice properly granted summary judgment in favor of a risk management trust on the counts of the complaint pertaining to the new claims. Shannahan v. Moreau, 202 A.3d 217, 2019 R.I. LEXIS 32 (2019).

Constructive Notice.

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 (1994).

Discovery of Wrongful Act.

Although the three-year limitation contained in this section continues to apply in actions brought against the state, the discovery rule contained in § 10-7-2 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 (1994).

Judgment was properly awarded to a town in plaintiffs’ negligence action for failing to delete an arrest warrant from the town’s computer system; the three-year statute of limitations had expired before plaintiffs brought their action and one plaintiff’s answers to interrogatories showed that plaintiffs were aware of the alleged negligence at the time it occurred. Illas v. Przybyla, 850 A.2d 937, 2004 R.I. LEXIS 109 (2004).

Courts interpret the term “accrue” in R.I. Gen. Laws § 9-1-25 in three ways: (1) the statute runs from the time the negligent action occurred; (2) the statute runs at the time the injury first became apparent; and (3) the statute runs at the time the plaintiff discovered the injury or, through reasonable diligence, should have discovered it. Illas v. Przybyla, 850 A.2d 937, 2004 R.I. LEXIS 109 (2004).

Infancy.

A child’s minority tolls the statute of limitations in actions brought against the state. Bishop v. Jaworski, 524 A.2d 1102, 1987 R.I. LEXIS 467 (1987).

Legislative Intent.

Insofar as it relates to the liability of a municipality this section was a legislative limitation enacted in the wake of Becker v. Beaudoin, 106 R.I. 562 , 261 A.2d 896 (1970), in which the Rhode Island Supreme Court abrogated the doctrine of municipal immunity. Pearman v. Walker, 512 F. Supp. 228, 1981 U.S. Dist. LEXIS 11727 (D.R.I. 1981).

The two-year limitation period provided by this section represents the state’s effort to regulate actions commenced against municipalities; it stems from the premise that although governmental entities are not immune from tort liability, they may qualify their liability by establishing the terms and conditions of such actions. Pearman v. Walker, 512 F. Supp. 228, 1981 U.S. Dist. LEXIS 11727 (D.R.I. 1981).

9-1-26. Liability of hospitals.

Every hospital operating within this state, whether sustained in whole or in part by charitable contributions or endowments, shall be liable for the neglect, carelessness, or want of skill or for malicious act of any of its officers, agents, or employees in the management of or for the care or treatment of any of the patients or inmates of the hospital in the same manner as any other person or corporation would be liable at common law for similar acts on the part of his or her or its officers, agents, or employees. Nothing contained herein shall be construed to impair any remedy under existing laws which any person may have against any officer, agent, or employee of any hospital for any act or omission in the course of his or her conduct or employment.

History of Section. P.L. 1968, ch. 43, § 2.

Collateral References.

Construction, operation, and effect of statute giving hospital lien against recovery from tortfeasor causing patient’s injuries. 16 A.L.R.5th 262.

Hospital’s liability for injury resulting from failure to have sufficient number of nurses on duty. 2 A.L.R.5th 286.

Liability of hospital for injury to person invited or permitted to accompany patient during emergency room treatment. 90 A.L.R.4th 478.

Liability of hospital or medical practitioner under doctrine of strict liability in tort, or breach of warranty, for harm caused by drug, medical instrument, or similar device used in treating patient. 65 A.L.R.5th 357.

Liability of hospital, physician, or other medical personnel for death or injury from use of drugs to stimulate labor. 1 A.L.R.5th 243.

Liability of hospital, physician, or other medical personnel for death or injury to child caused by improper postdelivery diagnosis, care, and representations. 2 A.L.R.5th 811.

Liability of hospital, physician, or other medical personnel for death or injury to mother caused by improper postdelivery diagnosis, care, and representations. 6 A.L.R.5th 534.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper administration of, or failure to administer, anesthesia or tranquilizers, or similar drugs, during labor and delivery. 1 A.L.R.5th 269.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper procedures during cesarean delivery. 76 A.L.R.4th 1112.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper treatment during labor. 6 A.L.R.5th 490.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by inadequate attendance or monitoring of patient during and after pregnancy, labor, and delivery. 3 A.L.R.5th 146.

Liability of physician, nurse, or hospital for failure to contact physician or to keep physician sufficiently informed concerning status of mother during pregnancy, labor, and childbirth. 3 A.L.R.5th 123.

Recoverability of compensatory damages for mental anguish or emotional distress for tortiously causing another’s birth. 74 A.L.R.4th 798.

9-1-27. Police and firefighters — Immunity from liability.

No member of any police force or fire department of the state or any city or town, investigators of the department of attorney general appointed pursuant to § 42-9-8.1 , inspectors and agents of the Rhode Island state fugitive task force appointed pursuant to § 12-6-7.2 , or any person acting in the capacity of a rescue attendant or member of a rescue squad, and no officer or member in active service in any incorporated protective department cooperating with fire departments, and no person performing the duties of a firefighter in a town or city, and no member of any volunteer fire company or volunteer rescue squad or member of any voluntary ambulance association, whether the company or squad is incorporated or not, who while on duty and in the performance of that duty voluntarily and gratuitously renders emergency assistance to a person in need thereof, and no person properly certified by the American heart association or the American national red cross in basic or advanced life support as defined in the standards of the American heart association or the American national red cross who voluntarily and gratuitously renders emergency assistance to a person in need thereof shall be liable for civil damages for any personal injuries or property damage which result from acts or omissions by the persons rendering the emergency care, which may constitute ordinary negligence. This immunity does not apply to acts or omissions constituting gross, willful, or wanton negligence.

History of Section. P.L. 1968, ch. 173, § 1; P.L. 1972, ch. 215, § 1; P.L. 1978, ch. 238, § 1; P.L. 1992, ch. 286, § 1; P.L. 1993, ch. 423, § 1; P.L. 2006, ch. 577, § 1.

Compiler’s Notes.

Section 12-6-7.2 , referred to in this code section, was repealed by P.L. 1989, ch. 195, § 2, effective July 3, 1989.

Law Reviews.

Caselaw Survey Section: Municipal Law, see 4 R.W.U.L. Rev. 759 (1999).

NOTES TO DECISIONS

Emergency Assistance.

Actions of a police officer at the scene of a shooting in securing the scene and preventing the victim from being moved until medical assistance arrived was within the ambit of this section and its requirement to render emergency assistance. Brandon v. City of Providence, 708 A.2d 893, 1998 R.I. LEXIS 64 (1998).

Police officers had immunity from any ordinary negligence claim arising from their failure to provide plaintiff with CPR while plaintiff was in their custody. Petro v. Town of W. Warwick, 889 F. Supp. 2d 292, 2012 U.S. Dist. LEXIS 127178 (D.R.I. 2012).

9-1-27.1. Good Samaritan — Immunity from liability.

No person who voluntarily and gratuitously renders emergency assistance to a person in need thereof including the administration of life saving treatment to those persons suffering from anaphylactic shock shall be liable for civil damages which result from acts or omissions by such persons rendering the emergency care, which may constitute ordinary negligence. This immunity does not apply to acts or omissions constituting gross negligence or willful or wanton conduct.

History of Section. P.L. 1984, ch. 194, § 1; P.L. 1995, ch. 51, § 1; P.L. 1995, ch. 160, § 1.

Collateral References.

Construction and application of “Good Samaritan” statute. 58 A.L.R.4th 294.

Rescue doctrine: liability of one who negligently causes motor vehicle accident for injuries to person subsequently attempting to rescue persons or property. 73 A.L.R.4th 737.

9-1-27.2. Court appointed special advocate program — Immunity from liability.

The state shall protect and hold harmless any attorney, director, coordinator, or social worker employed in the court appointed special advocate program and its court appointed volunteer special advocates (C.A.S.A.) from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, or suit for damages resulting from acts or omissions committed in the discharge of his or her duties with the program and within the scope of his or her employment which may constitute negligence, but which acts are not wanton, malicious, or grossly negligent as determined by a court of competent jurisdiction.

History of Section. P.L. 1988, ch. 102, § 1.

9-1-27.3. Court appointed law clerk advocate program — Immunity from liability.

The state shall protect and hold harmless any law clerk employed by the supreme court participating in the court appointed law clerk advocate program from financial loss and expenses, including legal fees and costs, if any, arising out of any claim, demand, or suit for damages resulting from acts or omissions committed in the discharge of his or her duties with the program which may constitute negligence, but which acts are not wanton, malicious, or grossly negligent as determined by a court of competent jurisdiction. The supreme court shall, by order, promulgate rules governing the court appointed law clerk advocate program, defining the types of cases and proceedings in which the law clerks, who have passed the Rhode Island bar, may participate as advocates under that program, and providing for appropriate general supervision of the law clerk advocates within that program by experienced members of the bar of this state.

History of Section. P.L. 1991, ch. 360, § 1.

9-1-28. Action for unauthorized use of name, portrait, or picture.

  1. Any person whose name, portrait, or picture is used within the state for commercial purposes without his or her written consent may bring an action in the superior court against the person so using his or her name, portrait, or picture to prevent and restrain the use thereof, and may recover damages for any injuries sustained by reason of such use. If the defendant shall have knowingly used the person’s name, portrait, or picture in such manner as is prohibited or unlawful, the court, in its discretion, may award the plaintiff treble the amount of the damages sustained by him or her.
  2. Nothing in this section shall be so construed as to:
    1. Apply to the use of names, portraits, or pictures in political speech or on matters of public concern;
    2. Prevent any person practicing the profession of photography from exhibiting in or about his or her or its establishment specimens of the work of the person or establishment, unless the exhibiting of any such specimen is continued after written notice objecting to it has been given by the person portrayed; or
    3. Prevent any person from using the name, portrait, or picture of any manufacturer or dealer in connection with the goods, wares, and merchandise manufactured, produced, or dealt in by the manufacturer or dealer which the person has sold or disposed of with the name, portrait, or picture used in connection therewith, or from using the name, portrait, or picture of any author, composer, or artist in connection with any literary, musical, or artistic production of the author, composer, or artist which the person has sold or disposed of with the name, portrait, or picture used in connection therewith.

History of Section. P.L. 1972, ch. 281, § 1; P.L. 2012, ch. 366, § 1; P.L. 2012, ch. 384, § 1.

Compiler’s Notes.

P.L. 2012, ch. 366, § 1, and P.L. 2012, ch. 384, § 1 enacted identical amendments to this section.

Cross References.

Action for deprivation of right to privacy, § 9-1-28.1 .

Law Reviews.

2004 Survey of Rhode Island Law: Case: Constitutional Law, see 10 Roger Williams U. L. Rev. 851 (2005).

NOTES TO DECISIONS

Burden of Proof.

To make out a violation of this section, the plaintiff must prove three distinct elements: (1) Use of his name, portrait, or picture, (2) without written permission, (3) for advertising or trade purposes. Mendonsa v. Time, Inc., 678 F. Supp. 967, 1988 U.S. Dist. LEXIS 1303 (D.R.I. 1988).

The plaintiff, citing the defendant’s 1980 publication of a 1945 photograph of the plaintiff and the defendant’s sale of a limited edition of the photograph for $1,600, adequately alleged that his picture was used for “purposes of trade” and therefore stated a cause of action under this section. Mendonsa v. Time, Inc., 678 F. Supp. 967, 1988 U.S. Dist. LEXIS 1303 (D.R.I. 1988).

Fire marshal’s investigator who also drew a fire department disability pension failed to show actionable defamation or appropriation of his likeness by a broadcaster whose investigative reporter questioned the propriety (legality of the practice was not in question) of what might have been perceived as double dipping, and summary judgment was properly entered in the broadcaster’s favor, since there was nothing defamatory about exercising the right of fair comment regarding true facts; rebroadcast of an excerpt from the original broadcast for promotional purposes was not an actionable invasion of privacy because the original broadcast had not been defamatory, and a voice over comment suggesting the investigator and others might be doing something wrong was insufficient to change that earlier characterization as not defamatory. Leddy v. Narragansett TV, L.P., 843 A.2d 481, 2004 R.I. LEXIS 54 (2004).

Provider of online advertising was not liable to minor victims of sex trafficking for posting advertisements of the victims as escorts; even though the provider profited from the sale of advertising, the traffickers were the entities that benefited from misappropriation of the commercial value of the victims’ images. Doe v. Backpage.com, LLC, 817 F.3d 12, 2016 U.S. App. LEXIS 4671 (1st Cir. 2016), cert. denied, 137 S. Ct. 622, 196 L. Ed. 2d 579, 2017 U.S. LEXIS 441 (2017).

Collateral References.

Liability for false obituary or news report of death. 85 A.L.R.4th 813.

9-1-28.1. Right to privacy — Action for deprivation of right.

  1. Right to privacy created.  It is the policy of this state that every person in this state shall have a right to privacy which shall be defined to include any of the following rights individually:
    1. The right to be secure from unreasonable intrusion upon one’s physical solitude or seclusion;
      1. In order to recover for violation of this right, it must be established that:
        1. It was an invasion of something that is entitled to be private or would be expected to be private;
        2. The invasion was or is offensive or objectionable to a reasonable man; although,
      2. The person who discloses the information need not benefit from the disclosure.
    2. The right to be secure from an appropriation of one’s name or likeness;
      1. In order to recover for violation of this right, it must be established that:
        1. The act was done without permission of the claimant;
        2. The act is of a benefit to someone other than the claimant;
      2. It need not be established that there was any publication.
    3. The right to be secure from unreasonable publicity given to one’s private life;
      1. In order to recover for violation of this right, it must be established that:
        1. There has been some publication of a private fact;
        2. The fact which has been made public must be one which would be offensive or objectionable to a reasonable man of ordinary sensibilities;
      2. The fact which has been disclosed need not be of any benefit to the discloser of the fact.
    4. The right to be secure from publicity that reasonably places another in a false light before the public;
      1. In order to recover for violation of this right, it must be established that:
        1. There has been some publication of a false or fictitious fact which implies an association which does not exist;
        2. The association which has been published or implied would be objectionable to the ordinary reasonable man under the circumstances;
      2. The fact which was disclosed need not be of any benefit to the discloser.
  2. Right of action.  Every person who subjects or causes to be subjected any citizen of this state or other person within the jurisdiction thereof to a deprivation and/or violation of his or her right to privacy shall be liable to the party injured in an action at law, suit in equity, or any other appropriate proceedings for redress in either the superior court or district court of this state. The court having jurisdiction of an action brought pursuant to this section may award reasonable attorneys’ fees and court costs to the prevailing party.
  3. Right of access.  Nothing in this section shall be construed to limit or abridge any existing right of access at law or in equity of any party to the records kept by any agency of state or municipal government.

History of Section. P.L. 1980, ch. 403, § 1.

Cross References.

Action for unauthorized use of name, portrait or picture, § 9-1-28 .

Law Reviews.

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

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

David M. Remillard, Comment: Highway to the Danger Drone: Reconciling First Amendment Rights of Drone Owners and Privacy Rights of Individuals in Creating a Comprehensive Statutory Scheme in Rhode Island, 22 Roger Williams U. L. Rev. 640 (2017).

Comparative Legislation.

Right to privacy:

Mass. Ann. Laws, ch. 214, § 1B.

NOTES TO DECISIONS

College Students.

A private college’s continual inquiry into the progress of a student’s diet and scrutiny of her personal weight-loss records constituted conduct which a trier of fact could reasonably find offensive or objectionable, and the college was therefore not entitled to summary judgment in the student’s action for invasion of privacy. Russell v. Salve Regina College, 649 F. Supp. 391, 1986 U.S. Dist. LEXIS 17641 (D.R.I. 1986).

A private college’s conduct toward an overweight student, including a request that she withdraw from a college nursing program, did not constitute an invasion of privacy, where the student’s obesity was a public fact, and the only area “invaded” was her psyche. Russell v. Salve Regina College, 890 F.2d 484, 1989 U.S. App. LEXIS 17412 (1st Cir. 1989), rev'd, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d 190, 1991 U.S. LEXIS 1714 (1991), modified, reinstated, 938 F.2d 315, 1991 U.S. App. LEXIS 14688 (1st Cir. 1991).

Defenses.

Father’s claim for wrongful intrusion, pursuant to R.I. Gen. Laws § 9-1-28.1 , alleged that a caseworker for the Rhode Island Department of Children, Youth and Families and other employees, in the course of a child abuse investigation, published and republished information about the father that he had a reasonable expectation would remain private. The caseworker who initiated the investigation, and the other defendants, were shielded by qualified immunity. Hopkins v. State, 491 F. Supp. 2d 266, 2007 U.S. Dist. LEXIS 45045 (D.R.I. 2007).

Divorce Records.

Rhode Island’s Privacy Act should not be interpreted to apply to the records of the family court concerning divorce. Doe v. Edward A. Sherman Publ'g Co., 593 A.2d 457, 1991 R.I. LEXIS 139 (1991).

Elements of Claim.

For a right to privacy action in tort to lie, plaintiffs must demonstrate that they actually expected a disclosed fact to remain private, and that society would recognize this expectation of privacy as reasonable and be willing to respect it. Pontbriand v. Sundlun, 699 A.2d 856, 1997 R.I. LEXIS 253 (1997).

Subsection (a)(1) only protects against an invasion of “one’s solitude or seclusion,” neither of which is present when activity takes place outside one’s house in public view. Swerdlick v. Koch, 721 A.2d 849, 1998 R.I. LEXIS 332 (1998).

Summary judgment for the defendant was denied where the plaintiff alleged that the defendant burst into her apartment and raped her, since such behavior could qualify as an “invasion of something that is entitled to be private or would be expected to be private,” and as “offensive or objectionable to a reasonable man,” thus satisfying the statutory test for a violation of the state privacy act. Liu v. Striuli, 36 F. Supp. 2d 452, 1999 U.S. Dist. LEXIS 448 (D.R.I. 1999).

Where city employees alleged that a city and its officials violated their right to privacy under R.I. Gen. Laws § 9-1-28.1 by installing a call recording system at a public safety complex, defendants’ summary judgment motion was denied as there was a genuine issue of material fact as to whether the employees had an objectively reasonable expectation of privacy in their telephone calls into and out of the complex. Walden v. City of Providence, 495 F. Supp. 2d 245, 2007 U.S. Dist. LEXIS 49194 (D.R.I. 2007).

Trial court properly dismissed an employee’s action, alleging a violation of her right to privacy under R.I. Gen. Laws § 9-1-28.1(a)(1) , as an officer for the employee’s conduct was inappropriate and offensive where he pushed a price sticker onto the employee’s shoulder upon being annoyed with the placement of the sticker on a store item, but it was not statutorily actionable; the employee did not establish that she threw about her person a seclusion that merited an expectation of privacy. DaPonte v. Ocean State Job Lot, Inc., 21 A.3d 248, 2011 R.I. LEXIS 58 (2011).

In a citizen’s civil action alleging the unauthorized publication of a sealed criminal record, the trial court correctly found against the citizen on his claim alleging a violation of the right-to-privacy statute, R.I. Gen. Laws § 9-1-28.1 , because the citizen failed to establish that a private fact was unlawfully published where the proverbial cat had already been let out of the bag before an officer disclosed any details of the citizen’s arrest. The citizen had already disclosed to a friend that he had been arrested and had responded to a reporter that the charges against him were bogus. Tarzia v. State, 44 A.3d 1245, 2012 R.I. LEXIS 76 (2012).

Plaintiff’s invasion-of-privacy claim failed as a matter of law because he failed to set forth the publication of any false or fictitious fact by any defendant as plaintiff’s transfer and demotion were a matter of public knowledge; plaintiff could only point to an interoffice memoranda between defendants in support of his claim; and the events on which his claim was premised actually occurred. Gross v. Pare, 185 A.3d 1242, 2018 R.I. LEXIS 81 (2018).

In an action involving various allegations against a former mayor, the hearing justice appropriately granted summary judgment in favor of a risk management trust on plaintiffs’ claims for public disclosure of private facts and false light because plaintiffs did not demonstrate a material issue of fact as to how the former mayor had placed plaintiffs in a false light or unreasonably disclosed private facts about them by his words or actions. Shannahan v. Moreau, 202 A.3d 217, 2019 R.I. LEXIS 32 (2019).

False Light Claim.

A magazine photograph and a narrative describing schoolgirls as “amazons” who attacked boys did not support a false light claim against the magazine publishers. Fudge v. Penthouse International, Ltd., 840 F.2d 1012, 1988 U.S. App. LEXIS 2432 (1st Cir.), cert. denied, 488 U.S. 821, 109 S. Ct. 65, 102 L. Ed. 2d 42, 1988 U.S. LEXIS 3861 (1988).

Where the defendant’s statements regarding the plaintiff’s alleged zoning violations, while sometimes overstated or slightly off the mark in one factual detail or another, nonetheless were based on substantially true facts, there was no basis for an action for false light. Swerdlick v. Koch, 721 A.2d 849, 1998 R.I. LEXIS 332 (1998).

Given the respect which the state courts accord the restatement of torts on matters of privacy law otherwise unresolved by state law, the district court concluded that state courts would adopt the restatement’s rule that corporations do not enjoy privacy rights, and that the false light action filed by the plaintiff failed as a matter of law. Intercity Maint. Co. v. Local 254 SEIU, 62 F. Supp. 2d 483, 1999 U.S. Dist. LEXIS 12178 (D.R.I. 1999), aff'd, 241 F.3d 82, 2001 U.S. App. LEXIS 3121 (1st Cir. 2001).

Where the chairman made statements to local newspapers regarding the member’s attempt to oust the chairman and the member’s behavior at the town meeting, such subjective estimations combined with underlying non-defamatory and accurate facts did not form the basis of a meritorious false-light claim under R.I. Gen. Laws § 9-1-28.1(a)(4) . Cullen v. Auclair, 809 A.2d 1107, 2002 R.I. LEXIS 202 (2002).

Employee’s claim for false light was properly dismissed as he did not allege that the employer made any false statements about him; allegations that defendant “undermined,” “accused,” and “exaggerated” are not equivalent to alleging that defendant published a false statement to a third party—here, presumably, the agency’s clients. Ferreira v. Child & Family Servs. of R.I., 222 A.3d 69, 2019 R.I. LEXIS 143 (2019).

Financial Information.

Since bank-deposit records possessed by the Governor were not acquired through any wrongful or improper means, plaintiffs did not state a cause of action under subsection (a)(1) even though their names, Social Security numbers, and deposit amounts were distributed to newspapers by the Governor’s office. Pontbriand v. Sundlun, 699 A.2d 856, 1997 R.I. LEXIS 253 (1997).

Judgment for a bank was proper in a borrower’s claim of privacy violation under R.I. Gen. Laws § 9-1-28.1 because, although the borrower claimed that the bank improperly disclosed her mortgage balance, the borrower never established at trial that any disclosure was made; further, considering the bank’s interests, the amount owed by borrower owed on the mortgage was not private information that society would have recognized as protected. The buyer of the property at a foreclosure sale, although not personally liable for the balance of the loan to the bank, risked losing title to the property had the loan not been paid, and the bank had a legal interest in the property dating to 1978, when the borrower and her then-husband undertook the mortgage. Lamarque v. Centreville Sav. Bank, 22 A.3d 1136, 2011 R.I. LEXIS 86 (2011).

Misappropriation of Likeness.

In enacting subsection (a)(2) the legislature intended only to prohibit the misappropriation of likeness for noncommercial purposes, in view of the fact that § 9-1-28 already creates a cause of action for unauthorized uses for commercial purposes. Mendonsa v. Time, Inc., 678 F. Supp. 967, 1988 U.S. Dist. LEXIS 1303 (D.R.I. 1988).

Public Activity Not Covered.

The plain meaning of the privacy statute does not cover alleged psychological invasions of privacy caused by mere observations of public activity that do not also involve the requisite physical invasion. Swerdlick v. Koch, 721 A.2d 849, 1998 R.I. LEXIS 332 (1998).

Where the complained of activity consisted of the photographing and recording of the arrival and departure times of delivery trucks, the cataloguing of vehicle registration numbers, and the describing of those persons observed at the plaintiffs’ home, all of which related to the plaintiff’s ongoing business activities, there were no “private facts” to be published and no violation of the privacy statute. Swerdlick v. Koch, 721 A.2d 849, 1998 R.I. LEXIS 332 (1998).

Public Records.

The statutory right to privacy in Rhode Island does not extend to those records deemed public. Doe v. Edward A. Sherman Publ'g Co., 593 A.2d 457, 1991 R.I. LEXIS 139 (1991).

Police officer was entitled to qualified immunity from an individual’s claim under R.I. Gen. Laws § 9-1-28.1(b) based on the release the individual’s mug shot and excerpts of a son’s statements to police where the contradictory language in R.I. Gen. Laws §§ 38-2-2(4)(i)(D) [now see 38-2-2(5)(i)(D)] and 40-11-13(a) could have been read to both allow the release of the records and prohibit a release; thus, the individual’s right to privacy was not clearly established at the time of the release. Hatch v. Town of Middletown, 311 F.3d 83, 2002 U.S. App. LEXIS 23747 (1st Cir. 2002).

District court’s order dismissing an individual’s claim under R.I. Gen. Laws § 9-1-28.1(b) against a police officer who embellished an arrest report and released it to a tabloid was upheld where the officer’s embellishments did not add any new information and another police officer had already disclosed the same information by releasing the individual’s mug shot and excerpts of a statement that the individual’s son had made to the police. Hatch v. Town of Middletown, 311 F.3d 83, 2002 U.S. App. LEXIS 23747 (1st Cir. 2002).

Searches.

This section confers a cause of action only for unreasonable invasions of privacy and does not impose liability for constitutionally permissible searches by government officials. Brousseau v. Town of Westerly, 11 F. Supp. 2d 177, 1998 U.S. Dist. LEXIS 8715 (D.R.I. 1998).

When students sued police officers for searching the students after obtaining the consent of the students’ coach, the officers were entitled to summary judgment regarding the students’ invasion of privacy claim because the claim arose from conduct for which the officers were entitled to qualified immunity. Lopera v. Town of Coventry, 652 F. Supp. 2d 203, 2009 U.S. Dist. LEXIS 83320 (D.R.I. 2009), aff'd, 640 F.3d 388, 2011 U.S. App. LEXIS 6757 (1st Cir. 2011).

Where officers searched high school soccer players in the presence of an abusive crowd, officers were entitled to qualified immunity as to the players’ unlawful search claim because (1) a reasonable officer could have concluded that the coach had authority to consent to a search of the students, and (2) it could not be said that all officers of reasonable competence would have concluded that the coach’s consent to the search was invalid since, inter alia, the coach’s choice between undesirable options did not itself mean the choice was coerced, and the officers posed their search request as a question and did not make any showing that it could not be refused. Lopera v. Town of Coventry, 640 F.3d 388, 2011 U.S. App. LEXIS 6757 (1st Cir. 2011).

Suicide.

The right of privacy dies when the person who could claim it dies. Cliff v. Narragansett TV, L.P., 688 A.2d 805, 1996 R.I. LEXIS 297 (1996).

Videotape.

The trial justice properly admitted a videotape into evidence since it contained probative evidence that the defendant “willfully” intercepted the audio portion of the tape for the purpose of committing a tortious act, and where the tape was not so shocking as to inflame the jurors to the point where they would be unable to weigh the evidence and reach a verdict in a rational and thoughtful manner. State v. O'Brien, 774 A.2d 89, 2001 R.I. LEXIS 178 (2001).

Zoning Inspections.

There was no invasion of privacy where zoning officials had a legitimate reason to inspect a home because the owners had been and were alleged to be still violating the zoning ordinance, and where the owners permitted entry for purposes of inspection on more than one occasion. Swerdlick v. Koch, 721 A.2d 849, 1998 R.I. LEXIS 332 (1998).

Collateral References.

“Caller ID” system, allowing telephone call recipient to ascertain number to telephone from which call originated, as violation of right to privacy, wiretapping statute, or similar protections. 9 A.L.R.5th 553.

Construction and application of state statutory provisions prohibiting racial profiling. 102 A.L.R.6th 621.

Free exercise of religion clause of First Amendment as defense to tort liability. 93 A.L.R. Fed. 754.

Invasion of right of privacy. 33 A.L.R.4th 479.

What is “agency” subject to Privacy Act provisions (5 USCA § 552a). 150 A.L.R. Fed. 521.

What is “record” within meaning of Privacy Act of 1974 (5 USCS § 552a). 121 A.L.R. Fed. 465.

9-1-29. Constructors of improvements to real property — Immunity from liability.

No action (including arbitration proceedings) in tort to recover damages shall be brought against any architect or professional engineer who designed, planned, or supervised to any extent the construction of improvements to real property, or against any contractor or subcontractor who constructed the improvements to real property, or material suppliers who furnished materials for the construction of the improvements, on account of any deficiency in the design, planning, supervision, or observation of construction or construction of any such improvements or in the materials furnished for the improvements:

  1. For injury to property, real or personal, arising out of any such deficiency;
  2. For injury to the person or for wrongful death arising out of any such deficiency; or
  3. For contribution or indemnity for damages sustained on account of any injury mentioned in subdivisions (1) and (2) hereof more than ten (10) years after substantial completion of such an improvement; provided, however, that this shall not be construed to extend the time in which actions may otherwise be brought under §§ 9-1-13 and 9-1-14 .

History of Section. P.L. 1975, ch. 119, § 1.

NOTES TO DECISIONS

Constitutionality.

This section does not violate R.I. Const., Art. I, § 5 , which guarantees access to the courts. Walsh v. Gowing, 494 A.2d 543, 1985 R.I. LEXIS 540 (1985).

Barring of Suits.

College student’s 1985 suit for injuries resulting from a 1982 fall through a dormitory door was barred, where the dormitory had been substantially completed in September 1971. Leeper v. Hillier Group, Architects Planners, P.A., 543 A.2d 258, 1988 R.I. LEXIS 91 (1988).

A defendant’s mere failure to obtain an electrical permit failed to rise to the level of a genuine issue of material fact as to when the work was substantially completed, and thus because the plaintiff produced no affirmative evidence controverting the fact that the electrical work at issue was actually completed in 1980, the defendant was entitled to a summary judgment as a matter of law. Cuccio v. Doe, 649 A.2d 504, 1994 R.I. LEXIS 236 (1994).

Improvements to Real Property.

The language of this section, “improvements to real property,” applied to the Newport Bridge. Walsh v. Gowing, 494 A.2d 543, 1985 R.I. LEXIS 540 (1985).

Fire-sprinkler systems are “improvements to real property” for purposes of the statute of limitations. Qualitex v. Coventry Realty Corp., 557 A.2d 850, 1989 R.I. LEXIS 71 (1989).

Installation of a freight elevator constitutes the construction of an improvement to real property within the meaning of this section. Desnoyers v. Rhode Island Elevator Co., 571 A.2d 568, 1990 R.I. LEXIS 53 (1990).

An installation of a pump constitutes an “improvement to real property” within the meaning of this section. Allbee v. Crane Co., 644 A.2d 308, 1994 R.I. LEXIS 213 (1994).

Persons Entitled to Protection.

The manufacturer of a fire-sprinkler system is within the class of persons entitled to protection by this section. Qualitex v. Coventry Realty Corp., 557 A.2d 850, 1989 R.I. LEXIS 71 (1989).

This section protects architects and professional engineers from suits alleging negligence as a result of design or construction of an improvement to real property that have not been brought within ten years of substantial completion of the improvement. Thus, the statute protects improvers of real property from tort liability for work that has been substantially completed for ten years. Boghossian v. Ferland Corp., 600 A.2d 288, 1991 R.I. LEXIS 180 (1991).

Statutory Causes of Action.

Property owners’ action against a builder for breach of an implied warranty of reasonable workmanship and habitability alleged a cause of action based on a contract theory, and was therefore governed by the statute of limitations set out in § 9-1-13(a) , rather than the statute of limitations set out in this section. Boghossian v. Ferland Corp., 600 A.2d 288, 1991 R.I. LEXIS 180 (1991).

Collateral References.

Products liability: Liability of manufacturer, supplier, or seller of passenger or freight elevator, hoist, or elevator component for injury or damage resulting from alleged defect in elevator or component. 117 A.L.R.5th 267.

Products liability: roofs and roofing materials. 3 A.L.R.5th 851.

Retroactive Application of State Statutes Concerning Asbestos Liability. 41 A.L.R.6th 445.

What constitutes “improvement to real property” for purposes of statute of repose or statute of limitations. 122 A.L.R.5th 1.

9-1-30. Demand for judgment in an action alleging personal injury, injury to property, or wrongful death — Exclusion of monetary amount.

  1. No complaint or pleading in an action of contract or tort for personal injury, injury to property, or wrongful death shall contain an ad damnum or monetary amount claimed against any defendant or defendants; provided, however, that in any action brought before the superior court, the complaint shall state that the monetary amount claimed is sufficient to establish the jurisdiction of the superior court.
  2. Notwithstanding any provision of this section to the contrary, a complaint or pleading in an action of contract or tort for personal injury, injury to property, or wrongful death in any action brought before the district court shall state the monetary amount claimed.

History of Section. P.L. 1976, ch. 244, § 8; P.L. 1977, ch. 77, § 4; P.L. 1978, ch. 149, § 2; P.L. 1987, ch. 522, § 7; P.L. 1988, ch. 393, § 1.

NOTES TO DECISIONS

Ad Damnum Clause.

Although an ad damnum clause had no legal force as to damages, it was persuasive evidence that an injured woman intended to sue a city employee only in the employee’s official capacity. Feeney v. Napolitano, 825 A.2d 1, 2003 R.I. LEXIS 32 (2003).

9-1-31. Public school teachers, supervisors, and administrators — Immunity from liability — Compensation for certain injuries — Duty upon school committees and board of regents.

  1. Each school committee and the board of regents shall protect and save harmless
    1. any public school teacher
    2. any supervisor, administrator, or licensed professional employee
    3. any employee whose position requires a certificate from the department of education or board of regents for elementary and  secondary education
    4. any employee whose position directly involves work with students
    5. any employee of the board of regents

      from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, or suit for actions resulting in accidental bodily injury to or death of any person, or in accidental damage to or destruction of property, within or without the school building, or any other acts, including but not limited to infringement of any person’s civil rights, resulting in any injury, which acts are not wanton, reckless, malicious, or grossly negligent, as determined by a court of competent jurisdiction, provided the teacher, supervisor, or administrator, at the time of the acts resulting in the injury, death, damages, or destruction, was acting in the discharge of his or her duties or within the scope of his or her employment or under the direction of the school committee or the board of regents.

  2. For the purpose of this section, the term “teacher” shall include any student teacher doing practice teaching under the direction of a teacher employed by a school committee or the board of regents.
  3. Each school committee and the board of regents shall protect and save harmless any teacher or any supervisor or administrator from financial loss and expense, including payment of expenses reasonably incurred for medical or other service, necessary as a result of an assault upon the teacher, supervisor, or administrator while the person was acting in the discharge of his or her duties within the scope of his or her employment or under the direction of the school committee or the board of regents, which expenses are not paid by the individual teacher’s, supervisor’s, or administrator’s workers’ compensation.
  4. Any teacher, supervisor, or administrator absent from his or her employment as a result of injury sustained during an assault upon the teacher, supervisor, or administrator that occurred while the teacher, supervisor, or administrator was discharging his or her duties within the scope of his or her employment or under the direction of the school committee or the board of regents, or for a court appearance in connection with the assault, shall continue to receive his or her full salary, while so absent, except that the amount of any workers’ compensation award may be deducted from his or her salary payments during the absence. The time of the absence shall not be charged against the teacher’s, supervisor’s, or administrator’s sick leave, vacation time, or personal leave days.
  5. A person so injured in accordance with subdivision (d) above and who receives a disability therefrom, which renders them unable to fully perform their normal duties, shall, if the disability continues for a period of one year, apply to the Rhode Island employees retirement system for appropriate benefits for which that person is entitled.

History of Section. P.L. 1978, ch. 221, § 1; P.L. 1980, ch. 48, § 1; P.L. 1988, ch. 136, § 1; P.L. 1990, ch. 341, § 1; P.L. 1997, ch. 212, § 1.

NOTES TO DECISIONS

Compensation Benefits.

A teacher’s receipt of the full-salary benefit provided for by subsection (d) was burdened by the condition of applying to the retirement system in a timely manner for the appropriate benefits to which that teacher may be entitled. Woonsocket Teachers' Guild Local Union 951, AFT v. Woonsocket Sch. Comm., 694 A.2d 727, 1997 R.I. LEXIS 189 (1997).

After suffering for a year under a disability sustained in accordance with subsection (d) of this section, the teacher was required by law to apply to the retirement system pursuant to subsection (e) as a condition to her receipt of the full-salary benefits provided for by subsection (d). Woonsocket Teachers' Guild Local Union 951, AFT v. Woonsocket Sch. Comm., 694 A.2d 727, 1997 R.I. LEXIS 189 (1997).

— Failure to Comply.

Because the teacher failed to comply with the requirement of applying to the retirement system for whatever benefits may be appropriate for a teacher in her situation, the teacher thereby precluded herself from receiving the full-salary payment provided for by subsection (d). Accordingly, the teacher was required to reimburse the school committee for all amounts paid to her after the one-year anniversary date of her injury, in excess of that amount required to be paid to her by the collective-bargaining agreement, together with interest thereon at the legal rate from the date such payments were made. Woonsocket Teachers' Guild Local Union 951, AFT v. Woonsocket Sch. Comm., 694 A.2d 727, 1997 R.I. LEXIS 189 (1997).

Legislative Intent.

The legislature, by limiting its reference to the indemnification of financial losses and legal expenses to those that arise out of any claim, demand, or suit intended that subsection (a) was to be applied only to civil proceedings. Monti v. Warwick Sch. Comm., 554 A.2d 638, 1989 R.I. LEXIS 20 (1989).

Collateral References.

Appealability, under collateral order doctrine, of order denying qualified immunity in 42 USCS § 1983 or Bivens action for damages where claim for equitable relief is also pending — post-Harlow cases. 105 A.L.R. Fed. 851.

Liability of school or school personnel for injury to student resulting from cheerleader activities. 25 A.L.R.5th 784.

Tort liability of public schools and institutions of higher learning for accidents occurring during school athletic events. 68 A.L.R.5th 663.

Tort liability of public schools and institutions of higher learning for accidents occurring in physical education classes. 66 A.L.R.5th 1.

Tort liability of public school or government agency for misclassification or wrongful placement of student in special education program. 33 A.L.R.4th 1166.

Tort liability of public schools and institutions of higher learning for accident occurring during school athletic events. 35 A.L.R.3d 725.

Tort liability of public schools and institutions of higher learning for injury to student walking to or from school. 72 A.L.R.5th 469.

Tort liability of schools and institutions of higher learning for personal injury suffered during school field trip. 68 A.L.R.5th 519.

9-1-31.1. Members of public bodies — Exemption from liability.

  1. Definitions.  The following words and terms shall have the following respective meanings, unless the context clearly indicates a different meaning:
    1. “Public body” means any branch, department, division, agency, commission, committee, board, council, bureau, authority, or any subdivision thereof of state government or any other public agency or public body corporate of the state of Rhode Island or any political subdivision thereof.
    2. “Qualified member” means an individual who serves without monetary or other compensation as a member of a public body for the purpose of setting policy, controlling, or otherwise overseeing the activities or functional responsibilities of the public body. As used in this section, “compensation” does not include a per diem or per meeting allowance, health insurance benefits, or reimbursement for out-of-pocket costs and expenses incurred in the service.
  2. Limitation of liability.  Notwithstanding any other law, a qualified member of a public body shall not be held civilly liable for any breach of his or her duties as such member, provided that nothing herein contained shall eliminate or limit the liability of a qualified member:
    1. For acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
    2. For any transaction from which such member derived an improper personal benefit; or
    3. For any malicious, willful or wanton act.

History of Section. P.L. 1987, ch. 522, § 5.

Collateral References.

Appealability, under collateral order doctrine, of order denying qualified immunity in 42 USCS § 1983 or Bivens action for damages where claim for equitable relief is also pending — post-Harlow cases. 105 A.L.R. Fed. 851.

9-1-32. Effect of alteration of product after sale.

  1. As used in this section:
    1. “Person injured” means the person  who sustained damages because of personal injury, death, or property damage.
    2. “Product liability damages” means damages because of personal injury, death, or property damage sustained by reason of an alleged defect in a product, or an alleged failure to warn or protect against a danger or hazard in the use or misuse of the product, or an alleged failure to instruct properly in the use of a product.
    3. “Subsequent alteration or modification” means an alteration or modification of a product made subsequent to the manufacture or sale by the manufacturer or seller that altered, modified, or changed the purpose, use, function, design, or manner of use of the product from that originally designed, tested, or intended by the manufacturer, or the purpose, use, function, design, or manner of use or intended use for which the product was originally designed, tested, or manufactured.
  2. Any defense claimed by the manufacturer or seller that the person injured made a subsequent alteration or modification to the product that is found to be a significant contributing factor to the injury, death, or property damage shall be controlled by the comparative negligence provisions of § 9-20-4 .

History of Section. P.L. 1978, ch. 299, § 1; P.L. 2021, ch. 387, § 1, effective July 13, 2021; P.L. 2021, ch. 388, § 1, effective July 13, 2021.

Compiler's Notes.

P.L. 2021, ch. 387, § 1, and P.L. 2021, ch. 388, § 1 enacted identical amendments to this section.

Applicability.

P.L. 2021, ch. 387, § 2, provides that the amendment to this section by that act takes effect on passage [July 13, 2021] and “shall only apply to causes of action and claims arising after the effective date of this act.”

P.L. 2021, ch. 388, § 2, provides that the amendment to this section by that act takes effect on passage [July 13, 2021] and “shall only apply to causes of action and claims arising after the effective date of this act.”

NOTES TO DECISIONS

Failure to Maintain.

Failure to observe routine maintenance can constitute “subsequent alteration or modification.” La Plante v. American Honda Motor Co., 27 F.3d 731, 1994 U.S. App. LEXIS 16220 (1st Cir. 1994).

Jury Instructions.

Under this section, if a subsequent alteration or modification to a product is a “substantial cause” of a plaintiff’s injuries, the defendant is completely immune from a products liability claim even if the product was defective at the time it left the defendant’s control, and the defect was a proximate cause of the plaintiff’s injuries. Thus, because there was evidence that changes had been made to the vehicle between the time of its initial sale and the time of the plaintiff’s accident, the defense provided by this section should have been communicated to the jury. La Plante v. American Honda Motor Co., 27 F.3d 731, 1994 U.S. App. LEXIS 16220 (1st Cir. 1994).

Strict Liability Not Applicable.

A case does not involve an issue of products liability where the materials supplied are neither inherently dangerous nor capable of causing personal injury. In the instant case, the materials sold were not defective. They could have been used for roofs other than the two-ply roof. Monex, Inc. v. Anthony A. Nunes, Inc., 576 A.2d 1206, 1990 R.I. LEXIS 122 (1990).

Collateral References.

Burden of proving feasibility of alternative safe design in products liability action based on defective design. 78 A.L.R.4th 154.

Consequential loss of profits from injury to property as element of damages in products liability. 89 A.L.R.4th 11.

Federal pre-emption of state common-law products liability claims pertaining to drugs, medical devices, and other health-related items. 98 A.L.R. Fed. 124.

Federal pre-emption of state common-law products liability claims pertaining to motor vehicles. 97 A.L.R. Fed. 853.

Federal pre-emption of state common-law products liability claims pertaining to tobacco products. 97 A.L.R. Fed. 890.

Forum non conveniens in products liability cases. 76 A.L.R.4th 22.

Liability for injury or death allegedly caused by spoilage or contamination of beverage. 87 A.L.R.4th 804.

Products liability: admissibility of evidence of subsequent repairs or other remedial measures by third party other than defendant. 64 A.L.R.5th 119.

Products liability: all-terrain vehicles (ATVs). 83 A.L.R.4th 70.

Products Liability: Alteration or Modification of Machinery and Tools After They Leave Hands of Manufacturer or Seller as Affecting Liability for Product-Caused Harm. 28 A.L.R.7th Art. 5 (2018).

Products Liability: Alteration or Modification of Motor Vehicle After It Leaves Hands of Manufacturer or Seller as Affecting Liability for Product-Caused Harm. 28 A.L.R.7th Art. 2 (2018).

Products liability: Application of strict liability doctrine to seller of used product. 9 A.L.R.5th 1.

Products liability: bicycles and accessories. 76 A.L.R.4th 117.

Products liability: cigarettes and other tobacco products. 36 A.L.R.5th 541.

Products liability: competitive sports equipment. 76 A.L.R.4th 201.

Products liability: contributory negligence or assumption of risk as defense in action for strict liability or breach of warranty based on failure to provide safety device for product causing injury. 75 A.L.R.4th 538.

Products liability: contributory negligence or assumption of risk as defense in negligence action based on failure to provide safety device for product causing injury. 75 A.L.R.4th 443.

Products liability: cutting or heating torches. 84 A.L.R.4th 1123.

Products liability: defective motor vehicle air bag systems. 39 A.L.R.5th 267.

Products liability: exercise and related equipment. 76 A.L.R.4th 145.

Products liability: general recreational equipment. 77 A.L.R.4th 1121.

Products liability: hair straighteners and relaxants. 84 A.L.R.4th 1090.

Products liability: industrial refrigeration equipment. 72 A.L.R.4th 90.

Products Liability: Inferior Vena Cava (IVC) Filters. 47 A.L.R.7th Art. 5 (2020).

Products Liability: lighters and lighter fluid. 14 A.L.R.5th 47.

Products liability: lubricating products and systems. 80 A.L.R.4th 972.

Products liability: manufacturer’s postsale obligation to modify, repair, or recall product. 47 A.L.R.5th 395.

Products liability: mechanical amusement rides and devices. 77 A.L.R.4th 1152.

Products liability: motor vehicle exhaust systems. 72 A.L.R.4th 62.

Products Liability: Necessity and Admissibility of Expert or Opinion Evidence as to Causation of Injury to Automobile and Other Motor Vehicle User Concerning Particular Vehicles. 43 A.L.R.7th Art. 7 (2019).

Products Liability: Necessity and Admissibility of Expert or Opinion Evidence as to Causation of Injury to Automobile and Other Motor Vehicle User Concerning Particular Witnesses. 43 A.L.R.7th Art. 2 (2019).

Products Liability: Necessity and Admissibility of Expert or Opinion Evidence as to Causation of Injury to Medical Device User Concerning Particular Devices. 40 A.L.R.7th Art. 4 (2019).

Products Liability: Necessity and Admissibility of Expert or Opinion Evidence as to Causation of Injury to Prescription Drug User Concerning Particular Drugs. 39 A.L.R.7th Art. 2 (2019).

Products Liability: Necessity and Admissibility of Expert or Opinion Evidence as to Causation of Injury to Prescription Drug User Concerning Particular Witnesses. 39 A.L.R.7th Art. 1 (2019).

Products Liability: Necessity and Admissibility of Expert or Opinion Evidence as to Causation of Injury to User of Agricultural Equipment, Chemicals, and Feed. 48 A.L.R.7th Art. 4 (2020).

Products Liability: Necessity and Admissibility of Expert or Opinion Evidence as to Causation of Injury to User of Automobiles and Other Motor Vehicles Generally. 42 A.L.R.7th Art. 4 (2019).

Products Liability: Necessity and Admissibility of Expert or Opinion Evidence as to Causation of Injury to User of Electronic Devices. 45 A.L.R.7th Art. 4 (2019).

Products Liability: Necessity and Admissibility of Expert or Opinion Evidence as to Causation of Injury to User of Household Items. 44 A.L.R.7th Art. 5 (2019).

Products Liability: Necessity and Admissibility of Expert or Opinion Evidence as to Causation of Injury to User of Industrial Equipment and Chemicals. 46 A.L.R.7th Art. 8 (2019).

Products Liability: Necessity and Admissibility of Expert or Opinion Evidence as to Causation of Injury to User of Medical Devices Generally. 39 A.L.R.7th Art. 5 (2019).

Products Liability: Necessity and Admissibility of Expert or Opinion Evidence as to Causation of Injury to User of Sporting Equipment. 49 A.L.R.7th Art. 1 (2020).

Products liability: roofs and roofing materials. 3 A.L.R.5th 851.

Products liability: scaffolds and scaffolding equipment. 74 A.L.R.4th 904.

Products liability: seller’s right to indemnity from manufacturer. 79 A.L.R.4th 278.

Products liability: skiing equipment. 76 A.L.R.4th 256.

Products liability: tractors. 75 A.L.R.4th 312.

Products liability: trampolines and similar devices. 76 A.L.R.4th 171.

Strict products liability: recovery for damage to product alone. 72 A.L.R.4th 12.

Trademark licensor’s liability for injury or death allegedly due to defect in licensed product. 90 A.L.R.4th 981.

Validity, construction, and application of products liability statute precluding or limiting recovery where product has been altered or modified after leaving hands of manufacturer or seller. 13 A.L.R.7th Art. 8 (2016).

9-1-33. Insurer’s bad faith refusal to pay a claim made under any insurance policy.

  1. Notwithstanding any law to the contrary, an insured under any insurance policy as set out in the general laws or otherwise may bring an action against the insurer issuing the policy when it is alleged the insurer wrongfully and in bad faith refused to pay or settle a claim made pursuant to the provisions of the policy, or otherwise wrongfully and in bad faith refused to timely perform its obligations under the contract of insurance. In any action brought pursuant to this section, an insured may also make claim for compensatory damages, punitive damages, and reasonable attorney fees. In all cases in which there has been no trial in the superior court on or before May 20, 1981, the question of whether or not an insurer has acted in bad faith in refusing to settle a claim shall be a question to be determined by the trier of fact.
  2. The provisions of this section shall apply to all actions against insurers which have been commenced and are pending in any state or federal court on May 20, 1981.

History of Section. P.L. 1981, ch. 235, § 1.

Law Reviews.

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

NOTES TO DECISIONS

Constitutionality.

The admiralty clause of the federal constitution does not bar an action under this section. Pace v. Insurance Co. of N. Am., 838 F.2d 572, 1988 U.S. App. LEXIS 1211 (1st Cir. 1988).

Construction.

The language of this section applies only to insurers and not to insurer’s employees. LeFranc v. Amica Mut. Ins. Co., 594 A.2d 382, 1991 R.I. LEXIS 169 (1991).

Applicability.

Although this section now provides for action against an insurer for bad-faith refusal to pay a claim, it was not applicable to a case arising in 1976 since it was not enacted until 1981. Bitgood v. Allstate Ins. Co., 481 A.2d 1001, 1984 R.I. LEXIS 600 (1984).

A nonprofit hospital service/medical service corporation was not an “insurer” within the meaning of this section, and therefore no action could be brought against the corporation for bad-faith refusal to pay or settle. Richard v. Blue Cross & Blue Shield, 604 A.2d 1260, 1992 R.I. LEXIS 62 (1992).

An employee does not have a cause of action pursuant to this section against a workers’ compensation carrier for bad faith concerning the manner in which the employee’s workers’ compensation claim was handled, since the employee is not an insured. Cianci v. Nationwide Ins. Co., 659 A.2d 662, 1995 R.I. LEXIS 155 (1995).

In an employee’s suit against an insurance company for failure to pay long-term disability benefits under the employee’s employee benefit plan, the insurance company was entitled to summary judgment as to the employee’s breach of contract and bad faith claims because the claims were preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C.S. § 1001 et seq. Morris v. Highmark Life Ins. Co., 255 F. Supp. 2d 16, 2003 U.S. Dist. LEXIS 5851 (D.R.I. 2003).

Insureds failed to state a claim for bad faith claims handling under R.I. Gen. Laws § 9-1-33(a) against a claims administrator because the claims administrator had not issued the policy of insurance, but the existence of the statutory cause of action did not foreclose a common law bad faith claim against the claims administrator. Robertson Stephens, Inc. v. Chubb Corp., 473 F. Supp. 2d 265, 2007 U.S. Dist. LEXIS 11071 (D.R.I. 2007).

Assignment of Claim.

An insured may assign its bad-faith claim against its insurer to the injured claimant for the limited purpose of recovering the difference between the judgment received against the insured and the insurance-policy limits. Mello v. General Ins. Co., 525 A.2d 1304, 1987 R.I. LEXIS 496 (1987), limited, Imperial Cas. & Indem. Co. v. Bellini, 947 A.2d 886, 2008 R.I. LEXIS 66 (2008).

Bad Faith Delay.

Where insured alleged that the approximately 15-month lapse of time between the date when the fire occurred and the date the claim was finally settled constituted a bad-faith refusal to pay the insured’s claim, the insured failed to meet his burden of proof since the fact of a seven-month delay in receipt of the fire marshal’s final report by the insurance company was insufficient in light of the agreed statement that the report was not available to the insurance company until over 14 months after the fire. Bitgood v. Allstate Ins. Co., 481 A.2d 1001, 1984 R.I. LEXIS 600 (1984).

Breach of Contractual Duty.

There can be no cause of action for an insurer’s bad-faith refusal to pay a claim until the insured first establishes that the insurer breached its duty under the contract of insurance. Bartlett v. John Hancock Mut. Life Ins. Co., 538 A.2d 997, 1988 R.I. LEXIS 27 (1988).

Where the policies are voided due to the insured’s misrepresentations, so that there is no contractual liability even if the insurer exercises the utmost good faith, liability does not lie under this section. Borden v. Paul Revere Life Ins. Co., 935 F.2d 370, 1991 U.S. App. LEXIS 10907 (1st Cir. 1991).

Before a bad-faith claim can even be considered, a plaintiff must prove that the insurer breached its obligation under the insurance contract. Lewis v. Nationwide Mut. Ins. Co., 742 A.2d 1207, 2000 R.I. LEXIS 3 (2000).

Burden of Proof.

Both an objective and a subjective component are required to show bad faith: (1) The absence of an objectively reasonable basis to deny, and (2) the insurer’s subjective knowledge or its reckless disregard of the absence of such basis. Pace v. Insurance Co. of N. Am., 838 F.2d 572, 1988 U.S. App. LEXIS 1211 (1st Cir. 1988).

Summary judgment against the plaintiff was appropriate where the plaintiff failed to carry his initial burden of proof in a bad-faith claim by not even providing a copy of the insurance policy, his initial request for arbitration did not rise to the level of a demand, an issue existed about the extent of the injuries, and the insurance company paid the award upon completion of arbitration. Lewis v. Nationwide Mut. Ins. Co., 742 A.2d 1207, 2000 R.I. LEXIS 3 (2000).

An insurer may avoid liability by bringing a declaratory judgment action in order to clarify coverage terms without the action necessarily being viewed as a bad-faith maneuver. Where an insured provided no evidence that the insurer was doing more than attempting to clarify its coverage, the insured did not meet his burden in opposing the insurer’s summary judgment motion on a bad-faith count. LaBonte v. Nat'l Grange Mut. Ins. Co., 810 A.2d 250, 2002 R.I. LEXIS 225 (2002).

Coverage Issues.

The “Broad Form Comprehensive General Liability” policy in this case did not provide coverage against a complaint of intentional racial discrimination brought pursuant to Chapter 5 of Title 28, and the insurer had no duty to defend and indemnify from such a claim. Foxon Packaging Corp. v. Aetna Casualty & Sur. Co., 905 F. Supp. 1139, 1995 U.S. Dist. LEXIS 17743 (D.R.I. 1995).

Estoppel.

An insurer is estopped from rescinding a policy due to a material misrepresentation if the insurer or its agent knew the application contained the misstatement. Paul Revere Life Ins. Co. v. Fish, 910 F. Supp. 58, 1996 U.S. Dist. LEXIS 229 (D.R.I. 1996).

Evidence.

A federal district court was not precluded from directing a verdict for the insurer, where federal standards governed whether the evidence merited jury consideration, and the court found no evidence that the insurer had acted in bad faith. Cowdell v. Cambridge Mut. Ins. Co., 808 F.2d 160, 1986 U.S. App. LEXIS 35099 (1st Cir. 1986).

The existence of an arguable question of fact regarding coverage, in addition to the provision of a defense, albeit scant, and the eventual contribution to the settlement of a third-party claim, precluded a finding of bad faith on the part of the insurer. Rumford Property & Liab. Ins. Co. v. Carbone, 590 A.2d 398, 1991 R.I. LEXIS 75 (1991).

Fairly Debatable Claim.

When a claim is “fairly debatable,” the insurer is entitled to debate it, whether the debate concerns a matter of fact or law. The mere fact a court or jury ultimately rejects the insurer’s reason for denial does not demonstrate a breach of the insurer’s duty to exercise good faith. Pace v. Insurance Co. of N. Am., 838 F.2d 572, 1988 U.S. App. LEXIS 1211 (1st Cir. 1988).

Where a vessel owner’s claim under a maritime hull policy was “fairly debatable,” presenting an objectively reasonable basis to deny coverage, no liability in tort could arise against the insurer. Pace v. Insurance Co. of N. Am., 838 F.2d 572, 1988 U.S. App. LEXIS 1211 (1st Cir. 1988).

R.I. Gen. Laws § 9-1-33 provides that the question of whether or not an insurer has acted in bad faith in refusing to settle a claim shall be a question to be determined by the trier of fact; that is, bad faith is established when the proof demonstrates that the insurer acted without a reasonable basis in fact or law. Further, a plaintiff need not establish entitlement to a judgment as a matter of law on a breach of contract claim in order to establish bad faith. Skaling v. Aetna Ins. Co., 799 A.2d 997, 2002 R.I. LEXIS 103 (2002).

Regarding whether pursuant to R.I. Gen. Laws § 9-1-33 a realty corporation could assign its bad faith claim against the insurance company to the purported assignee, who was hurt when a step on the realty company’s property collapsed injuring the purported assignee, no bad faith showing was in fact made since the insurance company’s liability to the realty company was “fairly debatable” since it was not clear that the realty company was an insured under the relevant insurance policy. Imperial Cas. & Indem. Co. v. Bellini, 947 A.2d 886, 2008 R.I. LEXIS 66 (2008).

Federal Preemption.

Employee Retirement Income Security Act of 1974, 29 U.S.C.S. § 1001 et seq., preempts Rhode Island’s bad faith insurance statute. Morris v. Highmark Life Ins. Co., 255 F. Supp. 2d 16, 2003 U.S. Dist. LEXIS 5851 (D.R.I. 2003).

Liability Release Upheld.

Release absolving defendants “of and from any and all actions, causes of action, claims, demands, damages, costs, expenses, compensatory, incidental, consequential and/or punitive damages, or any other thing whatsoever on the account of or in any way growing out of the underlying claim” clearly releases the defendants from any bad-faith claim. Collins v. Fairways Condominiums Ass'n, 592 A.2d 147, 1991 R.I. LEXIS 120 (1991).

Settlement Offers.

An insurance company’s fiduciary obligations include not only the duty to act in good faith, but also a duty to act in the best interests of the insured, and the company therefore must consider seriously a plaintiff’s reasonable offer to settle within the policy limits. Asermely v. Allstate Ins. Co., 728 A.2d 461, 1999 R.I. LEXIS 101 (1999).

If an insurer declines to settle a case within the policy limits, it does so at its peril in the event that a trial results in a judgment that exceeds the policy limits, including interest, for such a judgment will render the insurer liable for the amount that exceeds the policy limits, unless it can show that the insured was unwilling to accept the offer of settlement. Asermely v. Allstate Ins. Co., 728 A.2d 461, 1999 R.I. LEXIS 101 (1999).

Collateral References.

Admissibility of polygraph or similar lie detector test results, or willingness to submit to test, on issues of coverage under insurance policy, or insurer’s good-faith belief that claim was not covered. 7 A.L.R.5th 143.

Liability of insurer to insured for settling third-party claim within policy limits resulting in detriment to insured. 18 A.L.R.5th 474.

9-1-34. Administering cardiopulmonary resuscitation or automated external defibrillation — Immunity from liability.

  1. No person, whether acting in an official capacity or as a private volunteer, who gratuitously renders emergency assistance in the nature of cardiopulmonary resuscitation or automated external defibrillation to a person in need thereof, shall be liable for civil damages for any personal injuries which result from acts or omissions by such persons rendering the emergency care, which may constitute ordinary negligence; provided, however, that this immunity applies only to persons who have been trained in accordance with standards promulgated by either the American heart association or the American national red cross. This immunity does not apply to acts or omissions constituting gross, willful, or wanton negligence. This immunity shall also extend to persons providing approved training in cardiopulmonary resuscitation and use of automated external defibrillation in accordance with standards promulgated by either the American heart association or the American national red cross and to physicians providing medical direction oversight for programs of automated external defibrillator use.
  2. Property lessees and owners where the emergency assistance occurs as well as the owners of the actual life saving equipment shall enjoy immunity from liability.

History of Section. P.L. 1982, ch. 290, § 1; P.L. 1996, ch. 162, § 1; P.L. 1996, ch. 250, § 1; P.L. 1999, ch. 51, § 1; P.L. 2001, ch. 208, § 1.

9-1-35. Civil action for ethnic or religious intimidation and/or vandalism.

  1. Any person, who is maliciously subjected to an act or acts which would reasonably be construed as intended to harass or intimidate the person because of his or her race, religion, or national origin, may bring an action in the superior court against the perpetrator of the act or acts for compensatory damages including damages for emotional distress. The court, in its discretion, may also restrain and enjoin such future acts by the defendant.
  2. If any provision or part of this section or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the section which can be given effect without the invalid provision or application, and to this end the provisions or parts of this section are severable.

History of Section. P.L. 1982, ch. 373, § 2.

Cross References.

Hate crimes, § 12-19-38 .

NOTES TO DECISIONS

Searches.

When students sued police officers for searching the students after obtaining the consent of the students’ coach, the officers were entitled to summary judgment regarding the students’ ethnic intimidation claim because there was no evidence that the students’ race or ethnicity motivated the officers’ conduct. Lopera v. Town of Coventry, 652 F. Supp. 2d 203, 2009 U.S. Dist. LEXIS 83320 (D.R.I. 2009), aff'd, 640 F.3d 388, 2011 U.S. App. LEXIS 6757 (1st Cir. 2011).

Where officers searched high school soccer players in the presence of an abusive crowd, officers were entitled to qualified immunity as to the players’ equal protection and state racial discrimination claims because, inter alia, the players failed to produce sufficient evidence of discriminatory intent to defeat qualified immunity. Lopera v. Town of Coventry, 640 F.3d 388, 2011 U.S. App. LEXIS 6757 (1st Cir. 2011).

Collateral References.

Construction and application of state statutory provisions prohibiting racial profiling. 102 A.L.R.6th 621.

9-1-36. Enumeration of statutes of limitation.

The following compilation of statutes of limitation for civil actions is set forth as an aid to the public and is not intended to replace the specific statutes referred to herein. The omission of any statute of limitation from this list shall in no way affect the validity of that statute.

Section Civil Action Period of Limitation 6-27-7 Enforcement of penalty provisions of the Rhode Island Truth-in-Lending and Retail Selling Act 1 year 6-36-23 Enforcement of Antitrust Act 4 years 6A-2-725(1) Breach of contracts for sale of goods 4 years 6A-2-725(5) Breach of warranty in products liability actions 10 years 9-1-5 Liability of landlord for tenant improvements, oral lease of more than one year 1 year after original term 9-1-13(a) All civil actions not otherwise limited 10 years 9-1-13(b) Product liability actions 10 years from purchase 9-1-14 For words spoken 1 year 9-1-14 Injuries to the person, generally 3 years 9-1-14.1 Medical, veterinarian, accounting, insurance, or real estate agent or broker malpractice 3 years 9-1-14.2 "Agent Orange" or phenoxy herbicides actions 3 years 9-1-14.3 Legal malpractice 3 years 9-1-17 Contracts or liabilities under seal; judgment; decrees 20 years 9-1-25 Suit against state, city or town or by special act 3 years 9-1-29 Against contractors, architects or engineers based on design 10 years after substantial completion 9-1-41 Loss of consortium – Loss of society and companionship 3 years 9-3-6 To enforce hospital liens 1 year from payment 9-3-11 Against insurer to enforce repairer's lien 1 year from payment to insured 9-3-14 Against insurer to enforce motor vehicle lessor's lien 1 year from payment to insured 10-6-4 For contributions from joint tortfeasors 1 year after payment by other joint tortfeasor 10-7-2 Wrongful death; loss of consortium, companionship or society in wrongful death action 3 years 10-7-7 Pain and suffering in wrongful death action 3 years 10-7.1-2 Libel of deceased person 1 year after death if libel occurred within 3 months after death 10-12-10 Jail yard bond 1 year 15-8-4 To enforce support obligations of putative father 6 years 15-8-6 To determine paternity 4 years after birth 24-8-35 Damages caused by pothole in state road; $300 limit 7 days 27-5-3 Claims against insurers on fire insurance policies 24 months 27-18-3 Claims against insurers on accident and sickness insurance policies 3 years 28-5-18 Complaint by human rights commission to eliminate unlawful employment practice 1 year 28-35-57 Workers' Compensation claim 2 years 31-5.1-15 Involving the regulation of business practices among motor vehicle manufacturers, distributors and dealers 4 years 33-6-14 Against executor to recover annuity or interest given life tenant by will 1 year 33-11-50 By creditor of decedent, other than on fiduciary's bond 2 years 33-13-9 To recover legacies or to impress and preserve a lien or charge on real estate 6 years 33-13-15 Against liens by creditor with contingent claim not accruing within six (6) months of fiduciary's qualification 1 year from accrual 33-13-15 Against lien by creditor who from accident, mistake or other cause failed to file within six (6) months of qualification 3 years from publication 33-21.1-26 Judicial review of decision of general treasurer (or his or her failure to act) concerning unclaimed property 90 days after decision; 180 days after filing if no decision 34-4-24 Proceedings based upon right of entry for condition broken or possibility of reverter to which a fee simple or fee simple determinable in land is subject, created before May 11, 1953 No later than December 31, 1987 34-19-10 Alleging forcible entry and detainer of land 3 years 34-28-10 To enforce mechanic's lien; notice given 1 year and 120 days 34-28-10 To enforce mechanic's lien; no notice given 120 days 37-6-18 For assessment of damages in state condemnation proceedings 1 year 37-12-5 For labor, material, or equipment against contractor's bond 2 years (or longer if so provided in bond) 37-13.1-1 Against state on highway and public works contracts 1 year 37-16-17 To confirm arbitrator's award in public works arbitration 1 year 39-2-7 Against public utilities for violations under chapters 1 – 5 of title 39 3 years 39-12-28 By owners or holders of receipts or bills of lading against intrastate common carriers 2 years 44-5-26 For relief from local tax assessments 3 months from last day to pay without penalty 45-15-9 Against towns for injury or damage arising out of maintenance of highways, causeways or bridges 3 years (with 60 days’ notice after incident) 45-20-1 Judicial review of decision of bureau of police or fire or similar department for removing petitioner 30 days 45-29-7 For assessment of damages in housing authority condemnation proceeding; with notice 3 months 45-29-7 For assessment of damages in housing authority condemnation proceeding; no notice 1 year 45-32-34 For assessment of damages in redevelopment project condemnation proceeding; with notice 3 months 45-32-34 For assessment of damages in redevelopment project condemnation proceeding; no notice 1 year 46-5-6 For assessment of damages in department of environmental management condem-nation proceeding; with notice 6 months 46-5-6 For assessment of damages in department of environmental management condem-nation proceeding; no notice 1 year

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History of Section. P.L. 1982, ch. 388, § 2; P.L. 1988, ch. 392, § 1; P.L. 1989, ch. 542, § 5.

Collateral References.

Amendment of pleading after limitation has run, so as to set up subsequent appointment as executor or administrator of plaintiff who professed to bring the action in that capacity without previous valid appointment. 27 A.L.R.4th 198.

Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action — Motor vehicle accident or injury cases: corporations, municipalities, insurers, and employers. 98 A.L.R.6th 93.

Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action — Motor vehicle accident or injury cases: estates, and other or unspecified parties. 99 A.L.R.6th 1.

Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action — Motor vehicle accident or injury cases: individual drivers, parents, owners or lessors, and passengers. 97 A.L.R.6th 375.

Availability of and time for bringing action against former director, officer, or stockholder in dissolved corporation for personal injuries incurred after final dissolution. 20 A.L.R.4th 414.

Claims for expenses of last sickness or for funeral expenses as within contemplation of statute requiring presentation of claims against decedent’s estate, or limiting time for bringing action thereon. 17 A.L.R.4th 530.

Industrial or occupational diseases: when statute of limitations begins to run as to cause of action for development of latent industrial or occupational disease. 1 A.L.R.4th 107.

Laches or acquiescence as defense, so as to bar recovery or arrearages of permanent alimony or child support. 5 A.L.R.4th 1015.

State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific owner. 26 A.L.R.4th 68.

Statutes limiting time for commencement of action to establish paternity of illegitimate child as violating child’s constitutional rights. 16 A.L.R.4th 926.

Statutes of limitation — actions by purchasers or contractees against vendors or contractors involving defects in houses or other buildings caused by soil instability. 12 A.L.R.4th 866.

What constitutes rejection of claim against estate to commence running of statute of limitations applicable to rejected claims. 36 A.L.R.4th 684.

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

What statute of limitations applies to actions for personal injuries based on breach of implied warranty under UCC provisions governing sales (UCC § 2-725(1)). 20 A.L.R.4th 915.

What statute of limitations governs action arising out of transaction consummated by use of credit card. 2 A.L.R.4th 677.

What statute of limitations governs damage action against attorney for malpractice. 2 A.L.R.4th 284.

What statute of limitations governs physician’s action for wrongful denial of hospital privileges. 3 A.L.R.4th 1214.

When does state statute of limitations begin to run in civil action for securities fraud under § 10(b) of Securities Exchange Act of 1934 (15 USCS § 78j(b)). 71 A.L.R. Fed. 257.

When statute of limitations begins to run against action based on unwritten promise to pay money where there is no condition or definite time for repayment. 14 A.L.R.4th 1385.

When statute of limitations commences to run on action under state deceptive trade practice or consumer protection acts. 18 A.L.R.4th 1340.

When statute of limitations commences to run on automobile no-fault insurance personal injury claim. 36 A.L.R.4th 357.

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

9-1-37. Enumeration of periods of appeal.

The following compilation of periods of appeal for criminal and civil actions is set forth as an aid to the public, and is not intended to replace the specific statutes referred to herein. The omission of any statute from this list shall in no way affect the validity of the omitted statute.

Section Action Period of Appeal 1-3-27 From board of appeals for airport zoning, to superior court 20 days 2-18-12 Orders of chief entomologist, to director of environmental management 5 days 3-7-21 Denial of class A, B, or C liquor license, to state liquor control administrator 10 days 3-12-11 Forfeiture of alcoholic beverages, from district to superior court 5 days 3-12-20 Conviction of possessing or selling unlawful alcoholic beverages, from district to superior court 5 days 4-1-14 Forfeiture of fighting birds or animals, from district to superior court 5 days 4-14-16 Replevin of impounded animals, from district to superior court 2 days 9-9-24 Decisions of jury commissioner, to superior court 1 year 9-12-10 Civil actions generally, from district to superior court 2 days 9-21-6 Orders of district or probate courts, or town council, where appeal not timely filed from accident, mistake or neglect, to superior court 90 days 9-24-7 Interlocutory orders, such as denial of injunction, appointment of receiver, or new trial motions, from superior to supreme court 20 days 9-24-32 Right of state to appeal in criminal and family court cases, to supreme court (where defendant not in jeopardy) 20 days 10-3-19 Judgments based on award of court appointed arbitrators, from superior to supreme court 20 days 10-4-12 From proceedings involving assignment for benefit of creditors, from superior to supreme court 30 days 10-9.1-9 Post-conviction judgments, from district to superior court, or from superior to supreme court 20 days 12-5.1-6 Denial of request for approval of interception of wire or oral communications, by state, from superior to supreme court 20 days 12-5.1-12 Granting of motion to suppress contents of intercepted wire or oral communications, or evidence obtained therefrom, by state, from superior to supreme court 30 days 12-22-1 Criminal cases generally, from district to superior court 5 days 12-22-1.1 Fines in criminal cases, from district to supreme court 20 days by certiorari 12-27-11 Cases involving adjudication of obscene publications, from superior to supreme court 20 days 14-1-52 Family court cases, generally, from family to supreme court 20 days 15-8-24 Paternity or bastardy cases, from family to supreme court 30 days 16-12.1-6 Orders of school committees affecting rights of public school administrators, to commissioner of elementary and secondary education 10 days 23-1-24 Compliance orders by director of health department, from superior or supreme court 30 days 23-23.5-3 City or town council orders prohibiting noxious trades, to superior court 3 days .5 23-27.3-127.2 Orders of building inspectors to local boards of appeal under BOCA Code 30 days 23-28.5-6 Orders of fire officials under state fire code, to superior court 30 days 24-7-5 Orders of city or town council laying sidewalk assessments, to superior court 40 days 28-35-28 Workers' compensation cases, from trial judge to appellate commission 5 days 28-35-29 Workers' compensation cases, to supreme court 20 days 33-9-21 Orders of superior court approving investment powers of guardians and conservators, to supreme court 10 days 33-15-40 Orders of superior court regarding powers of guardians or conservators to support dependents of ward 20 days 33-23-1 Probate cases generally, from probate to superior court 20 days 33-23-1 Probate cases generally, from superior to supreme court 30 days 39-5-1 Decisions of public utilities commission, to supreme court 7 days by certiorari 45-5-16 City and town council matters generally, to superior court 40 days 45-20-1 Bureau of fire and police, by firefighter, to superior court 30 days 45-23-20 Boards of review for subdivision control, or plan commissioner, to superior court 20 days 45-23.1-5 Town council decisions regarding mapped streets, to supreme court 30 days 45-24-69 Zoning board cases generally, to superior court 20 days 45-24.2-6 Housing boards of review cases, to district court 30 days 46-20-4 Town council decisions regarding power to drain water across land of abutting owners 40 days 42-35-15 Orders of all administrative agencies of state government not specifically exempted by of the Administrative Procedures Act § 42-35-18 30 days

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History of Section. P.L. 1982, ch. 388, § 2; P.L. 1997, ch. 326, § 14.

9-1-38. Limitation of actions for medical expenses incurred by minors.

Actions for medical expenses incurred by a minor, whether the minor or the minor’s parents or guardian has expended the sums, which medical expenses were incurred as the result of the negligence of a third party, shall be commenced and sued upon within three (3) years next after the minor reaches the age of eighteen (18) years, and not after. This section shall be given retroactive as well as prospective effect.

History of Section. P.L. 1982, ch. 388, § 27.

9-1-39. Civil action for desecration.

Notwithstanding any law to the contrary, any person, organization, corporation, or association which is the owner of property that is injured, destroyed, written upon, painted, or otherwise damaged or defaced in violation of § 11-44-31 may bring an action for compensatory damages against the person or persons committing the offense described in § 11-44-31 .

History of Section. P.L. 1982, ch. 374, § 2.

9-1-40. Civil liability for nonpayment of accident and sickness insurance by employer.

Whenever any person suffers any injury or loss to his or her person or property as a result of the intentional failure of his or her employer to pay any health insurance premium to which the person contributes through his or her employer, the person may recover his or her damages for any injury in a civil action against the employer. The employer shall be liable to the employee for twice the amount of expenses including but not limited to all medical and legal expenses incurred.

History of Section. P.L. 1983, ch. 156, § 1.

9-1-41. Loss of consortium — Loss of society and companionship.

  1. A married person is entitled to recover damages for loss of consortium caused by tortious injury to his or her spouse.
  2. An unemancipated minor is entitled to recover damages for the loss of parental society and companionship caused by tortious injury to his or her parent.
  3. Parents are entitled to recover damages for the loss of their unemancipated minor child’s society and companionship caused by tortious injury to the minor.
  4. Actions under this section shall be brought within the time limited under § 9-1-14 or 9-1-14.1 , whichever is applicable, for actions for injuries to the person.

History of Section. P.L. 1984, ch. 64, § 1; P.L. 1985, ch. 443, § 1; P.L. 1988, ch. 544, § 1.

Cross References.

Loss of consortium or society and companionship due to death by wrongful act, § 10-7-1.2 .

NOTES TO DECISIONS

Accrual of Actions.

A cause of action for loss of consortium arising from a spouse’s injury begins to run at the time that the injury occurred to the injured spouse. Soares v. Ann & Hope of R.I., Inc., 637 A.2d 339, 1994 R.I. LEXIS 38 (1994), overruled in part, Berman v. Sitrin, 101 A.3d 1251, 2014 R.I. LEXIS 137 (2014).

Causation.

A directed verdict against minor plaintiffs on their loss-of-society claims was proper based on a finding that the children were separated from their mother as the result of divorce, not because of injuries received by the mother in an automobile accident. Shayer v. Bohan, 708 A.2d 158, 1998 R.I. LEXIS 39 (1998).

Derivative Cause of Action Under Section.

An action for loss of consortium under this section, although a separate cause of action, is not an independent action but a derivative one that is attached to the claim of the injured spouse. It arises from the injured spouse’s physical injury and is dependent upon the success of the underlying tort claim. Sama v. Cardi Corp., 569 A.2d 432, 1990 R.I. LEXIS 22 (1990); Hodor v. United Servs. Auto. Ass'n, 637 A.2d 357, 1994 R.I. LEXIS 45 (1994).

Where the plaintiff ’s husband received workers’ compensation benefits under the Workers’ Compensation Act and was therefore barred from pursuing a tort action for physical injuries against his employer, the plaintiff is similarly barred from recovering for loss of consortium resulting from those injuries. Sama v. Cardi Corp., 569 A.2d 432, 1990 R.I. LEXIS 22 (1990).

Unless a spouse or child of an impaired party (the “deprived parties”) can show that joinder of their derivative claims for loss of consortium, society, and companionship with those of the impaired party was not feasible before the impaired party settled, arbitrated, or litigated his or her claims, the deprived parties must join their claims with those of the impaired party before an arbitration award or judgment adjudicating the impaired party’s claims has become final, whichever event first occurs. Desjarlais v. USAA Ins. Co., 824 A.2d 1272, 2003 R.I. LEXIS 150 (2003).

The Rhode Island Supreme Court has held that an action for loss of consortium under R.I. Gen. Laws § 9-1-41 is a derivative claim that is attached to the claims of an injured spouse or parent. Such action arises from the injured spouse or parent’s physical injury and is dependent upon the success of the underlying tort claim. Therefore, if a husband or father has no right to recover against a defendant, it follows that a plaintiff wife or child has no such right either. Forest v. Pawtucket Police Dep't, 290 F. Supp. 2d 215, 2003 U.S. Dist. LEXIS 18838 (D.R.I. 2003), aff'd, 377 F.3d 52, 2004 U.S. App. LEXIS 15527 (1st Cir. 2004).

In an action that a patron and his wife brought against a tavern owner to recover for injuries resulting from the patron’s fall down stairs at the tavern, summary judgment on the spouse’s claim for loss of consortium was inappropriate because there were genuine factual disputes with respect to the patron’s claims against the tavern owner and the spouse’s claims were derivative in nature. Noonan v. New Wharf Tavern, Inc., 2007 U.S. Dist. LEXIS 318 (D.R.I. Jan. 3, 2007).

Because plaintiff’s wife was not a party to his lawsuit, there was no evidence of any successful tort action by her against defendant, and plaintiff’s underlying abuse of process claim failed, his claim for loss of consortium under R.I. Gen. Laws § 9-1-41 was bootless, there having been nothing upon which such a derivative claim could have been based. Fiorenzano v. Lima, 982 A.2d 585, 2009 R.I. LEXIS 121 (2009).

Establishment of Paternity.

A claim for loss of companionship could not be sustained where, in spite of the claimant’s paternity contentions and the apparent willingness of the trial justice to entertain the claim, the record was bare of facts showing that the claimant first took the requisite statutory steps in an appropriate forum to establish his paternity. McKinnis v. Women & Infants Hosp., 749 A.2d 574, 2000 R.I. LEXIS 91 (2000).

Expired Claim Not Relating Back.

The assertion of one spouse’s right to a personal injury claim within the statutory period of limitations will not allow for the introduction of the other spouse’s expired loss of consortium claim through an amended complaint; such a claim, in effect, does not relate back to the original, timely filed complaint. Normandin v. Levine, 621 A.2d 713, 1993 R.I. LEXIS 70 (1993).

Where a motion to amend was filed more than three years after the cause of action for loss of consortium accrued, the claim was barred by the limitations period in R.I. Gen. Laws § 9-1-41 and R.I. Gen. Laws § 9-114. Balletta v. McHale, 823 A.2d 292, 2003 R.I. LEXIS 135 (2003).

Parent’s Claim Dismissed.

Plaintiffs did not establish by sufficient evidence in the record that they suffered a loss of son’s society and companionship as a result of a tortious injury to him, and trial court correctly dismissed both parents’ claims for loss of consortium. Jameson v. Hawthorne, 635 A.2d 1167, 1994 R.I. LEXIS 1 (1994).

Physical Injury Not Required.

Loss of consortium and loss of society claims arise because an injured spouse, parent or child, due to a tortious injury, can no longer supply the affection, companionship and society natural to such a relationship. Therefore, there is no requirement that the spouse, child or parent suffering the loss must also have some physical injuries as a result thereof. Fritz v. May Dep't Stores Co., 866 F. Supp. 66, 1994 U.S. Dist. LEXIS 15033 (D.R.I. 1994).

Prospective Application.

A wife was not entitled to recover damages, as a matter of law, for the loss of sentimental consortium due to injuries sustained by her husband as a result of a motor-vehicle accident occurring prior to the effective date of this section. Amaral v. Cabral, 494 A.2d 94, 1985 R.I. LEXIS 536 (1985).

Recovery by Uninjured Wife.

Wife could recover, under the uninsured motorist clause of an insurance policy issued to her and her husband, for loss of consortium under the policy even though she did not sustain a bodily injury. Ferreira v. Travelers Ins. Co., 684 F. Supp. 1150, 1988 U.S. Dist. LEXIS 4224 (D.R.I. 1988).

Recovery Under Insurance Policy.

A minor’s claim for loss of consortium benefits under the uninsured-motorist provisions of an automobile-liability policy was barred, where the policy required that the person from whom the consortium loss was derived must also be an insured under the policy and the deceased father from whom the claim was derived was not insured. Terilli v. Nationwide Mut. Ins. Co., 641 A.2d 1321, 1994 R.I. LEXIS 166 (1994).

Where a wife failed to show that joinder of her derivative loss of consortium claim and loss of society claims of her minor children was not feasible before the injured husband settled his underlying tort claims and arbitrated his underinsured motorist (UIM) claims, the superior court properly dismissed her suit against the UIM insurer on summary judgment. Desjarlais v. USAA Ins. Co., 824 A.2d 1272, 2003 R.I. LEXIS 150 (2003).

Tolling.

Parent’s claim for loss of consortium in a medical malpractice case is tolled under § 9-1-14.1 alongside the minor’s claim from which it is derived. Ho-Rath v. R.I. Hosp., 115 A.3d 938, 2015 R.I. LEXIS 63 (2015) (decision under prior law).

Collateral References.

Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium — General considerations. 4 A.L.R.7th Art. 1 (2015).

Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium — Impact of other legal concepts and theories of recovery. 6 A.L.R.7th Art. 4 (2015).

Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium — Proof, evidentiary considerations, limits of recovery, parties. 5 A.L.R.7th Art. 4 (2015).

Allowance of punitive damages in medical malpractice action. 35 A.L.R.5th 145.

Application of parental immunity doctrine to claims against parents of minor products liability plaintiffs. 10 A.L.R.7th Art. 2 (2016).

Child’s right of action for loss of support, training, parental attention, or the like, against a third person negligently injuring parent. 11 A.L.R.4th 549.

Conflict of laws as to right of action for loss of consortium. 46 A.L.R.3d 880.

Injured party’s release of tortfeasor as barring spouse’s action for loss of consortium. 29 A.L.R.4th 1200.

Judgment in spouse’s action for personal injuries as binding, as regards loss of consortium and similar resulting damage, upon other spouse not a party to the action. 12 A.L.R.3d 933.

Negligence of spouse or child as barring or reducing recovery for loss of consortium by other spouse or parent. 25 A.L.R.4th 118.

Physical injury: necessity of physical injury to support cause of action for loss of consortium. 16 A.L.R.4th 537.

Prior injury: recovery for loss of consortium for injury occurring prior to marriage. 5 A.L.R.4th 300.

Recoverability of compensatory damages for mental anguish or emotional distress for tortiously causing another’s birth. 74 A.L.R.4th 798.

Recovery of damages for loss of consortium resulting from death of child—modern status. 77 A.L.R.4th 411.

Recovery under Civil Damage (Dram Shop) Act for intangibles such as mental anguish, embarrassment, loss of affection or companionship, or the like. 78 A.L.R.3d 1199.

Spouse’s or parent’s right to recover punitive damages in connection with recovery of damages for medical expenses or loss of services or consortium arising from personal injury to other spouse or to child. 25 A.L.R.3d 1416.

Validity of verdict or verdicts by same jury in personal injury action awarding damages to injured spouse but denying recovery to other spouse seeking collateral damages, or vice versa. 66 A.L.R.3d 472.

Who, other than parent, may recover for loss of consortium on death of minor child. 84 A.L.R.5th 687.

Wife’s right of action for loss of consortium. 36 A.L.R.3d 900.

9-1-42. Alienation of affection, criminal conversation, or seduction — Causes of action abolished.

No civil action shall be commenced or prosecuted for alienation of affection, criminal conversation, or seduction, and those causes of action are hereby abolished.

History of Section. P.L. 1985, ch. 123, § 2.

Collateral References.

Action for intentional infliction of emotional distress against paramours. 99 A.L.R.5th 445.

9-1-43. Civil action for childsnatching.

  1. Any person, including a parent, who intentionally removes, causes the removal of, or detains any child under the age of eighteen (18) years with intent to deny another person’s right of custody under an existing decree or order of the family court in violation of § 11-26-1.1 shall be liable in an action at law, suit in equity, or any other appropriate proceeding for redress in the superior court. Actions brought pursuant to this section may include, but not limited to, damages for mental and emotional distress, loss of service, society and companionship, compensatory damages incurred in searching for the missing child, punitive damages, injunctive relief, and attorney’s fees.
  2. If any provision or part of this section or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the section which can be given effect without the invalid provision or application, and to this end the provisions or parts of this section are severable.

History of Section. P.L. 1985, ch. 166, § 1.

9-1-44. Civil action for release of names of minors.

  1. No member of any municipal or state agency shall release the identity of any minor who is believed to be a victim of a violation of any law except with the consent of his or her parent or guardian. This section shall not prevent the release of the identity of minors involved in a violation of a motor vehicle law or involved in a motor vehicle accident.
  2. Any person found to be in violation of the provisions of this section shall be liable to the minor in a civil action brought on behalf of the minor for compensatory damages and court costs.

History of Section. P.L. 1985, ch. 384, § 1.

NOTES TO DECISIONS

Evidence Sufficient.

Minor, who was the victim of a strong-arm-robbery, was properly awarded judgment and damages under R.I. Gen. Laws § 9-1-44 where the police department had filed the police report of the incident in a media-accessible box, resulting in publication of the minor’s identity and loitering and disturbances around the minor’s home by gang members who had strong-armed him. Plaintiff’s emotional injuries were sufficiently supported by a showing of physical manifestations such as loss of appetite and sleep. Grieco v. Napolitano, 813 A.2d 994, 2003 R.I. LEXIS 17 (2003).

9-1-45. Attorney’s fees in breach of contract actions.

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

  1. Finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party; or
  2. Renders a default judgment against the losing party.

History of Section. P.L. 1985, ch. 394, § 1; P.L. 1990, ch. 371, § 2.

NOTES TO DECISIONS

Application.

Since the court determined that the plaintiff’s position rested upon an arguable proposition of law, the court acted with sound discretion in denying the defendants’ request for counsel fees. Bucci v. Anthony, 667 A.2d 1254, 1995 R.I. LEXIS 295 (1995).

Plaintiff’s request for attorney’s fee was properly denied. Hemingway v. Hemingway, 698 A.2d 228, 1997 R.I. LEXIS 244 (1997).

An award of attorney fees was vacated where the appellate court vacated the original judgment as a matter of law on breach-of-contract claims. Women's Dev. Corp. v. City of Cent. Falls, 764 A.2d 151, 2001 R.I. LEXIS 2 (2001).

Plaintiffs’ assertions that because a jury found in their favor on a breach of contract claim, they were entitled to attorney’s fees pursuant to R.I. Gen. Laws § 9-1-45 was meritless for the simple fact that because the issue was allowed to go to a jury, did not make it inherently “justiciable.” Chrabaszcz v. Johnston Sch. Comm., 474 F. Supp. 2d 298, 2007 U.S. Dist. LEXIS 12822 (D.R.I. 2007).

Under R.I. Gen. Laws § 9-1-45 , the fact that a number of plaintiffs’ claims did not make it to the jury was not in itself a sufficient justification for the assessment of attorney’s fees. Chrabaszcz v. Johnston Sch. Comm., 2007 U.S. Dist. LEXIS 2846 (D.R.I. Jan. 12, 2007).

In a contractor’s breach of contract action against a project owner, the court entered judgment in favor of the contractor because it sufficiently supported its breach of contract claim and awarded the contractor prejudgment interest under R.I. Gen. Laws § 9-21-10 on the compensatory damages award. The court declined to award either party attorney’s fees and costs under R.I. Gen. Laws § 9-1-45 because neither party was willing to concede that one or more of its significant claims lacked legal and/or evidentiary support, which resulted in considerable motion practice and a lengthy and, no doubt, costly trial. Allstate Interiors & Exteriors, Inc. v. Stonestreet Constr., LLC, 907 F. Supp. 2d 216, 2012 U.S. Dist. LEXIS 155939 (D.R.I. 2012), aff'd, 730 F.3d 67, 2013 U.S. App. LEXIS 19401 (1st Cir. 2013).

As the superior court erred in entering judgment in favor of an executrix with regard to the general releases she provided to two heirs in a will contest, the executrix was not the prevailing party and the award of attorney’s fees the superior court made could not stand. Furtado v. Goncalves, 63 A.3d 533, 2013 R.I. LEXIS 53 (2013).

District court did not err in awarding attorneys’ fees to defendant because the district court did not abuse its discretion in concluding that plaintiffs’ allegations were clearly frivolous, and the district court did not err in not providing a fuller explanation because, even on appeal, plaintiffs pointed to nothing in the record that supported their assertion that their claim had merit. Universal Truck & Equip. Co. v. Southworth-Milton, Inc., 765 F.3d 103, 2014 U.S. App. LEXIS 16915 (1st Cir. 2014).

Trial court did not err in denying a seller attorney’s fees because it found that a termite problem and damage to the door of the property the seller sold to the purchasers presented justiciable issues, even though the purchasers’ arguments were meritless. Danforth v. More, 129 A.3d 63, 2016 R.I. LEXIS 6 (2016).

In a dispute over a bequest to a former wife in a decedent’s will, the wife was not entitled to attorney’s fees because (1) the case was not based on a breach of contract, and (2) a justiciable issue on the testator’s testamentary intent existed. Glassie v. Doucette, 159 A.3d 88, 2017 R.I. LEXIS 54 (2017).

It was error to award a tenant attorneys’ fees under R.I. Gen. Laws § 9-1-45 because (1) the statute only granted a court authority to award attorneys’ fees to a party prevailing on a breach of contract claim, and, (2) while the tenant alleged such a claim, the tenant did not pursue the claim at trial, the jury was not instructed on the claim, and the tenant only prevailed on the tenant’s conversion claim. Heneault v. Lantini, 213 A.3d 410, 2019 R.I. LEXIS 110 (2019).

Federal Subject Matter Threshold Requirements.

Unless a court can, on the basis of the pleadings, find the complaint or the opposition thereto completely meritless, a requested award for attorney’s fees must be added to the amount sought for breach of contract in order to satisfy the amount in controversy requirements in deciding whether federal subject matter jurisdiction should be retained. Billings & Co., Inc. v. Pine Street Realty Assoc. Ltd. Partnership, 754 F. Supp. 10, 1990 U.S. Dist. LEXIS 17798 (D.R.I. 1990).

Justiciable Issue.

An award of attorneys’ fees to defendants was vacated where the plaintiffs presented a justiciable issue, even though the evidence eventually proved to be legally deficient. UXB Sand & Gravel v. Rosenfeld Concrete Corp., 641 A.2d 75, 1994 R.I. LEXIS 140 (1994).

Plaintiffs were not entitled to attorney fees where there was a justiciable issue as to whether an agreement continued to restrict the defendant’s subsequent business decisions with respect to its distribution arrangement with the plaintiff. Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 66 F. Supp. 2d 317, 1999 U.S. Dist. LEXIS 13698 (D.R.I. 1999), aff'd, 217 F.3d 8, 2000 U.S. App. LEXIS 14425 (1st Cir. 2000).

Trial justice did not abuse the justice’s discretion in denying property owners an award of attorney’s fees when the owners prevailed in an action brought by neighboring property owners claiming easement rights pursuant to a consent agreement; the trial justice found that, even though the neighboring property owners did not prevail, there was a justiciable issue. Arnold v. Arnold, 187 A.3d 299, 2018 R.I. LEXIS 96 (2018).

Collateral References.

Award of attorneys’ fees in excess of $75 per hour under Equal Access To Justice Act (EAJA) provision (28 USCS § 2412(d)(A)(2)(ii)) authorizing higher award—cases involving social security law. 113 A.L.R. Fed. 267.

Award of attorneys’ fees under § 813(a)(3) of Fair Debt Collection Practices Act (15 USCS § 1692k(a)(3)). 132 A.L.R. Fed. 477.

Recoupment of attorney fees, under Equal Access to Justice Act (EAJA) (28 USCS § 2412), by litigant represented by counsel to whom no fee is paid by litigant. 121 A.L.R. Fed. 291.

Right of prevailing defendant to recover attorney’s fees under § 706(k) of Civil Rights Act of 1964 (42 USCS § 2000e-5(k)). 134 A.L.R. Fed. 161.

Right of prevailing plaintiffs to recover attorneys’ fees under § 706(k) of Civil Rights Act of 1964(42 USCS § 2000e5(k)). 132 A.L.R. Fed. 345.

9-1-46. Affirmative defense of trespasser’s intent to commit a crime.

The owner or person legally entitled to possession of any land or building shall be entitled to plead as an affirmative defense that the injured person was trespassing with the intent to commit a felony, which upon proof thereof shall prohibit the trespasser from recovering for personal injuries sustained while upon the land or building, unless those injuries were inflicted by unreasonable force by the owner or person legally entitled to possession of the land or building.

History of Section. P.L. 1986, ch. 473, § 1.

9-1-47. Loss of homemaker services.

In any suit for damages as a result of personal injuries, a homemaker may recover the fair value of homemaker services provided to the home and those living therein. A “homemaker” as used herein is a person who has primary responsibility for the care of a home and a family and who receives no direct monetary compensation for those duties. The fair value of homemaker services shall not be limited to money actually expended to replace the services usually provided by the homemaker. In such a suit, the value of the homemaker services may be shown by expert testimony, but such testimony is not required.

History of Section. P.L. 1987, ch. 81, § 1.

9-1-48. Immunity from civil liability — Sports teams.

  1. Notwithstanding any provisions of law to the contrary, except as otherwise provided in subsection (c) of this section, no person who, without compensation and as a volunteer, renders services as a manager, coach, instructor, umpire, referee, or official or who, without compensation and as a volunteer, assists a manager, coach, instructor, umpire, referee, or official in a youth sports program organized and conducted by or under the auspices of a nonprofit corporation, and no director, trustee, officer, or employee of a nonprofit corporation which organizes, conducts, or sponsors a youth sports program, shall be liable to any person for any civil damages as a result of any acts or omissions in the rendering of such services or assistance or in the organization, conduct, or sponsorship of the youth sports program unless the acts or omissions of the person were committed in willful, wanton, or reckless disregard for the safety of the participants in the youth sports program. It shall be insufficient to impose liability upon any such person to establish only that the conduct of the person fell below ordinary standards of care.
  2. Notwithstanding any provisions of law to the contrary, except as otherwise provided in subsection (c) of this section, no person who renders services as a manager, coach, instructor, umpire, referee, or official or who assists a manager, coach, instructor, umpire, referee, or official in an interscholastic or intramural sports program organized and conducted in accordance with and subject to the rules, regulations, and jurisdiction of the Rhode Island interscholastic league, the committee on junior high school athletics, and/or the board of regents for elementary and secondary education shall be liable to any person for any civil damages as a result of any acts or omissions in the rendering of such services or assistance unless the acts or omissions of the person were committed in willful, wanton, or reckless disregard for the safety of the participants in the interscholastic or intramural sports program.
  3. Nothing in this section shall be deemed to grant immunity to any person, corporation, or other entity who or which causes injury or damage as the result of the negligent operation of a motor vehicle.
  4. For purposes of this section:
    1. “Compensation” shall not include reimbursement for reasonable expenses actually incurred or to be incurred or, solely in the case of umpires, referees, or other game officials, a modest honorarium.
    2. “Nonprofit corporation” shall include any nonprofit corporation or nonprofit association organized under the law of this state, or of any other state, or of the United States, which is authorized to do business in this state.
    3. “Youth sports program” shall include any program organized for recreational athletic competition, and/or instruction and whose participants are nineteen (19) years of age or younger or physically or mentally disabled regardless of age.

History of Section. P.L. 1987, ch. 307, § 1; P.L. 1988, ch. 311, § 1; P.L. 1999, ch. 83, § 7; P.L. 1999, ch. 130, § 7; P.L. 2012, ch. 415, § 16.

NOTES TO DECISIONS

Appeal.

Judgment in the amount of $212,000 against a school district in favor of a student injured after falling into a drain on the field during a soccer game was vacated on appeal since the school district was immune from liability for the negligence of the coach in failing to warn of the hazard on the field. Morales v. Town of Johnston, 895 A.2d 721, 2006 R.I. LEXIS 56 (2006).

Summary Judgment Improper.

Summary judgment was inappropriate where a cheerleader’s injury was sufficiently foreseeable to trigger the special-duty doctrine and ultimate liability on the part of the school district. Schultz v. Foster-Glocester Reg'l Sch. Dist., 755 A.2d 153, 2000 R.I. LEXIS 160 (2000).

Collateral References.

Liability of school or school personnel for injury to student resulting from cheerleader activities. 25 A.L.R.5th 784.

9-1-49. Correct corporate name and registered agent — Duty to provide.

  1. Whenever any person notifies a corporation that it intends to commence a civil action against the corporation, it shall be the duty of the corporation to inform the person of its correct corporate name, its state of incorporation, its business address as designated in its state of incorporation, its registered agent and the address of its registered agent within fourteen (14) days of receipt of the notification. If the corporation is aware that a subsidiary or affiliate is a proper party to the civil action, the corporation shall also provide the correct name and address of the subsidiary or affiliate.
  2. Whenever a corporation is served with a complaint it shall notify the plaintiff within twenty (20) days of service of its correct corporate name, its state of incorporation, its business address as designated in its state of incorporation, its registered agent, and the address of its registered agent, and if the corporation is aware that a subsidiary or affiliate is a proper party to the civil action, the corporation shall also provide the correct name and address of the subsidiary or affiliate. Failure of the corporation to so notify the plaintiff shall result in a defense on these issues being waived by the corporation, and the corporation shall be estopped from asserting that the complaint failed to identify the corporation by its correct corporate name, or that the corporation is not a proper party to the civil action.

History of Section. P.L. 1988, ch. 99, § 1; P.L. 1999, ch. 66, § 1.

9-1-50. Settled claims not paid within thirty (30) days.

  1. Whenever any claim is settled, the insurance company, adjusting company, or any other person, firm, or corporation responsible for paying the settlement shall make payment within thirty (30) days from the date the claimant or his or her attorney sends the release. Failure to make payment within thirty (30) days shall raise a presumption that failure to do so was a willful and wanton disregard for the rights of the claimant. In addition to all other remedies, the payor shall be liable to the claimant in a separate cause of action for punitive damages and interest which shall be computed at the rate of twelve percent (12%) per annum from the date the cause of action giving rise to the settlement occurred until the judgment on the claim brought pursuant to this section is entered.
  2. Any claim brought under the provisions of this section shall be given a priority on the trial calendar.

History of Section. P.L. 1991, ch. 341, § 1.

Law Reviews.

Survey Section: Remedies, see 3 R.W.U.L. Rev. 552 (1998).

NOTES TO DECISIONS

Evidence.

In an action against an insurance company seeking punitive damages and interest for failure to make a settlement payment within 30 days, evidence that a check had been timely issued by the company overcame the presumption of willful and wanton disregard for the rights of the claimant, and summary judgment in favor of the company was proper. Hutter v. Hartford Accident & Indem. Co., 710 A.2d 665, 1998 R.I. LEXIS 146 (1998).

Although a trial justice misconceived the burden-shifting framework, summary judgment was properly granted where the evidence established that a tortfeasor paid a settlement in full within 30 days from the date a release was sent by the injured party. Maciszewski v. Flatley, 814 A.2d 342, 2003 R.I. LEXIS 20 (2003).

Interest.

This section should be construed to create a single cause of action for punitive damages with interest to be computed from the date of the underlying cause of action. This section does not contain an independent cause of action for interest to be computed on the settlement amount. Laplante v. Honda N. Am., 697 A.2d 625, 1997 R.I. LEXIS 227 (1997).

This section does not provide for the recovery of compensatory interest based upon the unpaid settlement amount independent of a possible recovery of punitive damages for willful or wanton conduct. Laplante v. Honda N. Am., 697 A.2d 625, 1997 R.I. LEXIS 227 (1997).

9-1-51. Limitation on actions based on sexual abuse or exploitation of a child.

    1. All claims or causes of action brought against a perpetrator defendant by any person for recovery of damages for injury suffered as a result of sexual abuse shall be commenced within the later to expire of:
      1. Thirty-five (35) years of the act alleged to have caused the injury or condition; or
      2. Seven (7) years from the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act.

        Provided, however, that the time limit or commencement of such an action under this section shall be tolled for a child until the child reaches eighteen (18) years of age. For the purposes of this section, “sexual abuse” shall have the same meaning as in subsection (e) of this section.

    2. All claims or causes of action brought against a non-perpetrator defendant by any person alleging negligent supervision of a person that sexually abused a minor, or that the non-perpetrator defendant’s conduct caused or contributed to the childhood sexual abuse by another person to include, but not be limited to, wrongful conduct, neglect or default in supervision, hiring, employment, training, monitoring, or failure to report and/or the concealment of sexual abuse of a child shall be commenced within the later to expire of:
      1. Thirty-five (35) years of the act or acts alleged to have caused an injury or condition to the minor; or
      2. Seven (7) years from the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act.

        Provided, however, that the time limit or commencement of such an action under this section shall be tolled for a child until the child reaches eighteen (18) years of age.

        For purposes of this section “sexual abuse” shall have the same meaning as in subsection (e) of this section.

    3. As to a perpetrator defendant, any claim or cause of action based on conduct of sexual abuse may be commenced within the time period enumerated in subsections (a)(1)(i) and (a)(1)(ii) regardless if the claim was time-barred under previous version of the general laws.
    4. Except as provided in subsection (a)(3) herein, any claim or cause of action based on conduct of sexual abuse or conduct that caused or contributed to sexual abuse, if the action is not otherwise time-barred under previous version of the general laws on the effective date of this section, may be commenced within the time period enumerated in subsections (a)(1) and (a)(2) of this section.
  1. The victim need not establish which act in a series of continuing sexual abuse or exploitation incidents caused the injury complained of, but may compute the date of discovery from the date of the last act by the same perpetrator which is part of a common scheme or plan of sexual abuse or exploitation.
  2. The knowledge of a custodial parent or guardian shall not be imputed to a person under the age of eighteen (18) years.
  3. For purposes of this section, “child” means a person under the age of eighteen (18) years.
  4. As used in this section, “sexual abuse” means any act committed by the defendant against a complainant who was less than eighteen (18) years of age at the time of the act and which act would have been a criminal violation of chapter 37 of title 11.

History of Section. P.L. 1992, ch. 84, § 1; P.L. 1993, ch. 274, § 1; P.L. 2019, ch. 82, § 1; P.L. 2019, ch. 83, § 1; P.L. 2020, ch. 79, art. 2, § 3.

Compiler’s Notes.

P.L. 2019, ch. 82, § 1, and P.L. 2019, ch. 83, § 1 enacted identical amendments to this section.

Law Reviews.

Caselaw Survey Section: Statutes of Limitations, see 4 R.W.U.L. Rev. 800 (1999).

Tara Gunn, 2016 Survey, Cases: Tort Law: Hyde v. Roman Catholic Bishop of Providence, 22 Roger Williams U. L. Rev. 888 (2017).

NOTES TO DECISIONS

Claim Against Third Party.

The time within which a claim for injury resulting from sexual abuse of a minor must be brought is governed by § 9-1-14(b) (limitation of action for personal injury), not this section (limitation of action based on sexual abuse), when the claim is asserted against someone other than the alleged abuser (e.g., against the abuser’s employer). Kelly v. Marcantonio, 678 A.2d 873, 1996 R.I. LEXIS 187 (1996).

Construction With Other Statutes.

The legislature’s decision not to incorporate a discovery provision in § 9-1-14(b) at the same time that it enacted the discovery provision in this section evinced an intent that claims governed by the former provision continue to be considered as accruing at the time of injury. Kelly v. Marcantonio, 187 F.3d 192, 1999 U.S. App. LEXIS 18396 (1st Cir. 1999).

Repressed Recollection.

In enacting this section the legislature distinguished unsound mind from repressed recollection. Kelly v. Marcantonio, 187 F.3d 192, 1999 U.S. App. LEXIS 18396 (1st Cir. 1999).

To the extent that prior case law left open the option that repressed recollection, standing alone, could toll the statute of limitations with respect to nonperpetrator defendants, the Supreme Court of Rhode Island now forecloses it and holds that, under R.I. Gen. Laws § 9-1-19 , repressed recollection, in and of itself, is not a viable tolling mechanism against nonperpetrator defendants in childhood sexual abuse cases. In the Supreme Court’s opinion, reading R.I. Gen. Laws §§ 9-1-19 and 9-1-51 together makes it clear that § 9-1-51 sets forth the exclusive means by which the statute of limitations can be tolled based on the repressed recollection of childhood sexual abuse. Hyde v. Roman Catholic Bishop of Providence, 139 A.3d 452, 2016 R.I. LEXIS 85 (2016).

Retroactive Application.

Art. 1, § 2 (due process), of the State Constitution bars the retroactive application of subsection (b) to claims already time-barred by a statute of limitations in effect prior to the effective date of the 1993 amendment of subsection (b), which enlarged the period of time from three to seven years. Kelly v. Marcantonio, 678 A.2d 873, 1996 R.I. LEXIS 187 (1996).

Plaintiffs’ sexual assault and conspiracy suit against a church and officials was barred by the three-year statute of limitations in R.I. Gen. Laws § 9-1-14(b) because: (1) they filed suit more than 10 years after the statutory period had run; and (2) R.I. Gen. Laws § 9-1-51 provided no relief since it did not apply to claims against nonperpetrator defendants and their reason for delay was not objectively reasonable. Ryan v. Roman Catholic Bishop, 941 A.2d 174, 2008 R.I. LEXIS 12 , cert. denied, 555 U.S. 955, 129 S. Ct. 422, 172 L. Ed. 2d 305, 2008 U.S. LEXIS 7508 (2008).

Collateral References.

Running of limitations against action for civil damages for sexual abuse of child. 9 A.L.R.5th 321.

9-1-52. Cause of action for next lowest bidding qualified contractor.

Whenever a contractor or subcontractor, having been awarded the contract as the lowest qualified bidder, violates the state’s prevailing wage, a cause of action shall be for the next lowest qualified bidder for any and all damages incurred as the result of not being awarded the contract.

History of Section. P.L. 1994, ch. 429, § 1.

9-1-53. Misclassification of employees — Civil action.

Any person, firm, or corporation which suffers damages as a result of a competitive bid for a contract not being accepted due to another person, firm, or corporation knowingly misclassifying employees as independent subcontractors may bring an action for damages in the appropriate district or superior court. For the purposes of an action brought pursuant to this section, employee status shall be determined by the applicable provisions of the Internal Revenue Code of 1986, or any subsequent corresponding Internal Revenue Code of the United States, as from time to time amended.

History of Section. P.L. 2007, ch. 505, § 1.

9-1-54. Civil action against employer by employee under subpoena.

  1. An employer shall not discharge, threaten, or otherwise take any adverse action against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment:
    1. When an employee has been duly served with a subpoena, to give evidence or testify before any court, within or without the state of Rhode Island, or before any judicial, quasi-judicial, or other administrative body or entity with the authority to issue subpoenas.
    2. When the employee, upon being duly served with a properly issued subpoena, promptly provides notice to their employer of being served and of the requirement to attend court or other duly constituted hearing.
  2. Any employer who violates this section may be liable for damages which may include actual damages, compensatory damages, and reasonable attorneys’ fees incurred by the employee.
  3. Any cause of action under this section shall be commenced within three (3) years from the date of violation.
  4. Nothing herein shall prevent an aggrieved employee from pursuing any other cause of action under federal or state law.
  5. Nothing herein shall require an employer to compensate an employee for time missed from work for complying with a subpoena.

History of Section. P.L. 2016, ch. 48, § 1; P.L. 2016, ch. 51, § 1.

Compiler’s Notes.

P.L. 2016, ch. 48, § 1, and P.L. 2016, ch. 51, § 1 enacted identical versions of this section.

Chapter 1.1 The State False Claim Act

9-1.1-1. Name of act.

This chapter may be cited as the State False Claims Act.

History of Section. P.L. 2007, ch. 73, art. 18, §§ 1, 2.

9-1.1-2. Definitions.

As used in this chapter:

  1. “Custodian” means the custodian, or any deputy custodian, designated by the attorney general or a solicitor under § 9-1.1-6 of the Rhode Island general laws.
  2. “Documentary material” includes the original or any copy of any book, record, report, memorandum, paper, communication, tabulation, chart, or other document, or data compilations stored in or accessible through computer or other information retrieval systems, together with instructions and all other materials necessary to use or interpret such data compilations, and any product of discovery.
  3. “Guard” means the Rhode Island National Guard.
  4. “Investigation” means any inquiry conducted by any investigator for the purpose of ascertaining whether any person is or has been engaged in any violation of this chapter.
  5. “Investigator” means a person who is charged by the Rhode Island attorney general, a solicitor, or designee with the duty of conducting any investigation under this act, or any officer or employee of the State acting under the direction and supervision of the department of attorney general.
  6. “Product of discovery” includes:
    1. The original or duplicate of any deposition, interrogatory, document, thing, result of the inspection of land or other property, examination, or admission, which is obtained by any method of discovery in any judicial or administrative proceeding of an adversarial nature;
    2. Any digest, analysis, selection, compilation, or derivation of any item listed in paragraph (i); and
    3. Any index or other manner of access to any item listed in paragraph (i).
  7. “Solicitor” means a municipality, acting through its city or town solicitor or other duly appointed legal counsel.
  8. “State” means the state of Rhode Island; any agency of state government; and any political subdivision meaning any city, town, county or other governmental entity authorized or created by state law, including public corporations and authorities.

History of Section. P.L. 2007, ch. 73, art. 18, §§ 1, 2; P.L. 2012, ch. 217, § 1; P.L. 2012, ch. 227, § 1; P.L. 2012, ch. 415, § 17.

Compiler’s Notes.

This section was amended by three Acts (P.L. 2012, ch. 217, § 1, P.L. 2012, ch. 227, § 1, P.L. 2012, ch. 415, § 17) passed by the 2012 General Assembly. Since the three acts are not in conflict, the section is set out as amended by all three acts.

P.L. 2012, ch. 217, § 1, and P.L. 2012, ch. 227, § 1 enacted identical amendments to this section.

9-1.1-3. Liability for certain acts.

  1. Any person who:
    1. Knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;
    2. Knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim;
    3. Conspires to commit a violation of subsection (a)(1), (a)(2), (a)(4), (a)(5), (a)(6), or (a)(7);
    4. Has possession, custody, or control of property or money used, or to be used, by the state and knowingly delivers, or causes to be delivered, less property than all of that money or property;
    5. Is authorized to make or deliver a document certifying receipt of property used, or to be used, by the state and, intending to defraud the state, makes or delivers the receipt without completely knowing that the information on the receipt is true;
    6. Knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the state, or a member of the guard, who lawfully may not sell or pledge the property; or
    7. Knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the state, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the state; is liable to the state for a civil penalty in an amount equal to the civil penalty set forth in the Federal False Claims Act, following the Federal Civil Penalties Inflation Agreement Act of 1990 (31 U.S.C. § 3729(a)), Pub. L. No. 101-410 section 5, 104 Stat. 891, note following 28 U.S.C. § 2461, as amended and annually adjusted by the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015, plus three (3) times the amount of damages the state sustains because of the act of that person. A person violating this subsection (a) shall also be liable to the state for the costs of a civil action brought to recover any penalty or damages.
  2. Definitions.  For purposes of this section:
    1. “Claim” means any request or demand, whether under a contract or otherwise, for money or property and whether or not the state has title to the money or property, that:
      1. Is presented to an officer, employee, or agent of the state; or
      2. Is made to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the state’s behalf or advance a state program or interest, and if the state:
        1. Provides or has provided any portion of the money or property requested or demanded; or
        2. Will reimburse the contractor, grantee, or other recipient for any portion of the money or property that is requested or demanded; and
      3. Does not include requests or demands for money or property that the state has paid to an individual as compensation for state employment or as an income subsidy with no restrictions on that individual’s use of the money or property;
    2. “Knowing” and “knowingly” means that a person with respect to information:
      1. Has actual knowledge of the information;
      2. Acts in deliberate ignorance of the truth or falsity of the information;
      3. Acts in reckless disregard of the truth or falsity of the information; and
      4. Requires no proof of specific intent to defraud;
    3. “Material” means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property; and
    4. “Obligation” means an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based or similar relationship, from statute or regulation, or from the retention of any overpayment.
  3. Exclusion.  This section does not apply to claims, records, or statements made under the Rhode Island personal income tax law contained in chapter 30 of title 44.

History of Section. P.L. 2007, ch. 73, art. 18, §§ 1, 2; P.L. 2013, ch. 311, § 1; P.L. 2013, ch. 391, § 1; P.L. 2018, ch. 155, § 1; P.L. 2018, ch. 257, § 1.

Compiler’s Notes.

P.L. 2013, ch. 311, § 1, and P.L. 2013, ch. 391, § 1 enacted identical amendments to this section.

P.L. 2018, ch. 155, § 1, and P.L. 2018, ch. 257, § 1 enacted identical amendments to this section.

Collateral References.

Measure and Elements of Damages Under State False Claims Acts. 41 A.L.R.7th Art. 2 (2019).

Reverse False Claims Under State False Claims Act. 46 A.L.R.7th Art. 2 (2019).

Validity, Construction, and Application of State Vexatious Litigant Statutes. 45 A.L.R.6th 493.

9-1.1-4. Civil actions for false claims.

  1. Responsibilities of the attorney general and solicitor.  The attorney general or solicitor diligently shall investigate a violation under § 9-1.1-3 . If under this section the attorney general or solicitor finds that a person has violated or is violating § 9-1.1-3 , the attorney general or solicitor may bring a civil action under this section against the person.
  2. Actions by private persons.
    1. A person may bring a civil action for a violation of § 9-1.1-3 for the person and for the state. The action shall be brought in the name of the state. The action may be dismissed only if the court and the attorney general give written consent to the dismissal and their reasons for consenting.
    2. A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the state upon the attorney general. The complaint shall be filed in camera; shall remain under seal for at least sixty (60) days; and shall not be served on the defendant until the court so orders. The state may elect to intervene and proceed with the action within sixty (60) days after it receives both the complaint and the material evidence and information.
    3. The state may, for good cause shown, move the court for extensions of the time during which the complaint remains under seal under subsection (b)(2). Any motions may be supported by affidavits or other submissions in camera. The defendant shall not be required to respond to any complaint filed under this section until twenty (20) days after the complaint is unsealed and served upon the defendant.
    4. Before the expiration of the sixty-day (60) period or any extensions obtained under subsection (b)(3), the state shall:
      1. Proceed with the action, in which case the action shall be conducted by the state; or
      2. Notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to conduct the action.
    5. When a person brings an action under this subsection, no person other than the state may intervene or bring a related action based on the facts underlying the pending action.
  3. Rights of the parties to qui tam actions.
    1. If the state proceeds with the action, it shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the person bringing the action. The person shall have the right to continue as a party to the action, subject to the limitations set forth in subsection (c)(2).
      1. The state may dismiss the action notwithstanding the objections of the person initiating the action if the person has been notified by the state of the filing of the motion and the court has provided the person with an opportunity for a hearing on the motion.
      2. The state may settle the action with the defendant notwithstanding the objections of the person initiating the action if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances. Upon a showing of good cause, such hearing may be held in camera.
      3. Upon a showing by the state that unrestricted participation during the course of the litigation by the person initiating the action would interfere with or unduly delay the state’s prosecution of the case, or would be repetitious, irrelevant, or for purposes of harassment, the court may, in its discretion, impose limitations on the person’s participation, such as:
        1. Limiting the number of witnesses the person may call;
        2. Limiting the length of the testimony of such witnesses;
        3. Limiting the person’s cross-examination of witnesses; or
        4. Otherwise limiting the participation by the person in the litigation.
      4. Upon a showing by the defendant that unrestricted participation during the course of the litigation by the person initiating the action would be for purposes of harassment or would cause the defendant undue burden or unnecessary expense, the court may limit the participation by the person in the litigation.
    2. If the state elects not to proceed with the action, the person who initiated the action shall have the right to conduct the action. If the state so requests, it shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts (at the state’s expense). When a person proceeds with the action, the court, without limiting the status and rights of the person initiating the action, may nevertheless permit the state to intervene at a later date upon a showing of good cause.
    3. Whether or not the state proceeds with the action, upon a showing by the state that certain actions of discovery by the person initiating the action would interfere with the state’s investigation or prosecution of a criminal or civil matter arising out of the same facts, the court may stay discovery for a period of not more than sixty (60) days. Such a showing shall be conducted in camera. The court may extend the sixty-day (60) period upon a further showing in camera that the state has pursued the criminal or civil investigation or proceedings with reasonable diligence and any proposed discovery in the civil action will interfere with the ongoing criminal or civil investigation or proceedings.
    4. Notwithstanding subsection (b), the state may elect to pursue its claim through any alternate remedy available to the state, including any administrative proceeding to determine a civil money penalty. If any alternate remedy is pursued in another proceeding, the person initiating the action shall have the same rights in that proceeding as the person would have had if the action had continued under this section. Any finding of fact or conclusion of law made in the other proceeding that has become final shall be conclusive on all parties to an action under this section. For purposes of the preceding sentence, a finding or conclusion is final if it has been finally determined on appeal to the appropriate court; if all time for filing an appeal with respect to the finding or conclusion has expired; or if the finding or conclusion is not subject to judicial review.
  4. Award to qui tam plaintiff.
    1. If the state proceeds with an action brought by a person under this section, the person shall, subject to the second sentence of this paragraph, receive at least fifteen percent (15%) but not more than twenty-five percent (25%) of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action. Where the action is one that the court finds to be based primarily on disclosures of specific information (other than information provided by the person bringing the action) relating to allegations or transactions in a criminal, civil, or administrative hearing, in a legislative, administrative, or auditor general’s report, hearing, audit, or investigation, or from the news media, the court may award those sums as it considers appropriate, but in no case more than ten percent (10%) of the proceeds, taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation. Any payment to a person under the first or second sentence of subsection (d)(1) shall be made from the proceeds. The person shall also receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs. The state shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred by the attorney general, including reasonable attorneys’ fees and costs, and the amount received shall be deposited in the false claims act fund created under this chapter. All expenses, fees, and costs shall be awarded against the defendant.
    2. If the state does not proceed with an action under this section, the person bringing the action or settling the claim shall receive an amount the court decides is reasonable for collecting the civil penalty and damages. The amount shall be not less than twenty-five percent (25%) and not more than thirty percent (30%) of the proceeds of the action or settlement and shall be paid out of the proceeds. The person shall also receive an amount for reasonable expenses the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs. All expenses, fees, and costs shall be awarded against the defendant.
    3. Whether or not the state proceeds with the action, if the court finds that the action was brought by a person who planned and initiated the violation of § 9-1.1-3 upon which the action was brought, then the court may, to the extent the court considers appropriate, reduce the share of the proceeds of the action the person would otherwise receive under subsection (d)(1) or (d)(2), taking into account the role of that person in advancing the case to litigation and any relevant circumstances pertaining to the violation. If the person bringing the action is convicted of criminal conduct arising from his or her role in the violation of § 9-1.1-3 , that person shall be dismissed from the civil action and shall not receive any share of the proceeds of the action. The dismissal shall not prejudice the right of the state to continue the action.
    4. If the state does not proceed with the action and the person bringing the action conducts the action, the court may award to the defendant its reasonable attorneys’ fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.
  5. Certain actions barred.
    1. No court shall have jurisdiction over an action brought by a former or present member of the guard under this section (actions by private persons) against a member of the guard arising out of the person’s service in the guard.
    2. No court shall have jurisdiction over an action brought pursuant to subsection (b) (actions by private persons) against the governor, lieutenant governor, the attorney general, members of the general assembly, a member of the judiciary, the treasurer, secretary of state, the auditor general, any director of a state agency, and any other individual appointed to office by the governor if the action is based on evidence or information known to the state when the action was brought.
    3. In no event may a person bring an action under subsection (b) that is based upon allegations or transactions which are the subject of a civil suit or an administrative civil money penalty proceeding in which the state is already a party.
      1. The court shall dismiss an action or claim under this section, unless opposed by the state, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed:
        1. In a state criminal, civil, or administrative hearing, in which the state or its agents is a party;
        2. In a legislative or auditor general’s or other state of Rhode Island report, hearing, audit, or investigation; or
        3. From the news media, unless the action is brought by the attorney general or the person bringing the action is an original source of the information.
      2. For purposes of this paragraph, “original source” means an individual who either: (i) Prior to the public disclosure under subsection (e)(4)(A), has voluntarily disclosed to the state the information on which the allegations or transactions in a claim are based; or (ii) Who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transaction, and who has voluntarily provided the information to the state before filing an action under this section.
  6. State not liable for certain expenses.  The state is not liable for expenses that a person incurs in bringing an action under this section.
  7. Any employee, contractor, agent, or associated others discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent, or associated others in furtherance of an action under this section, or other efforts to stop one or more violations of this chapter, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee, contractor, agent, or associated others whole. The relief shall include reinstatement with the same seniority status the employee, contractor, agent, or associated others would have had but for the discrimination; two (2) times the amount of back pay; interest on the back pay; and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees. An employee, contractor, agent, or associated others may bring an action in the appropriate superior court for the relief provided in this subsection (g).
  8. Limitation on bringing civil action.  A civil action under subsection (g) may not be brought more than three (3) years after the date when the retaliation occurred.

History of Section. P.L. 2007, ch. 73, art. 18, §§ 1, 2; P.L. 2012, ch. 217, § 1; P.L. 2012, ch. 227, § 1; P.L. 2013, ch. 311, § 1; P.L. 2013, ch. 391, § 1; P.L. 2018, ch. 155, § 1; P.L. 2018, ch. 257, § 1.

Compiler’s Notes.

P.L. 2012, ch. 217, § 1, and P.L. 2012, ch. 227, § 1 enacted identical amendments to this section.

P.L. 2013, ch. 311, § 1, and P.L. 2013, ch. 391, § 1 enacted identical amendments to this section.

P.L. 2018, ch. 155, § 1, and P.L. 2018, ch. 257, § 1 enacted identical amendments to this section.

Collateral References.

Measure and Elements of Damages Under State False Claims Acts. 41 A.L.R.7th Art. 2 (2019).

Reverse False Claims Under State False Claims Act. 46 A.L.R.7th Art. 2 (2019).

Validity, construction, and application of false claims act’s “first to file” rule, 31 U.S.C. § 3730(b)(5). 11 A.L.R. Fed. 3d 4.

Validity, construction, and application of state vexatious litigant statutes. 45 A.L.R.6th 493.

9-1.1-5. False claims procedure.

  1. A subpoena requiring the attendance of a witness at a trial or hearing conducted under § 9-1.1-4 , may be served at any place in the state.
  2. A civil action under § 9-1.1-4 may not be brought:
    1. More than 6 years after the date on which the violation of § 9-1.1-3 is committed, or
    2. More than three (3) years after the date when facts material to the right of action are known or reasonably should have been known by the official of the state charged with responsibility to act in the circumstances, but in no event more than ten (10) years after the date on which the violation is committed, whichever occurs last.
  3. If the state elects to intervene and proceed with an action brought under § 9-1.1-4 , the state may file its own complaint or amend the complaint of a person who has brought an action under § 9-1.1-4 to clarify or add detail to the claims in which the state is intervening and to add any additional claims with respect to which the state contends it is entitled to relief. For statute of limitations purposes, any state pleading shall relate back to the filing date of the complaint of the person who originally brought the action, to the extent that the claim of the state arises out of the conduct, transactions, or occurrences set forth, or attempted to be set forth, in the prior complaint of that person.
  4. In any action brought under § 9-1.1-4 , the state shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.
  5. Notwithstanding any other provision of law, a final judgment rendered in favor of the state in any criminal proceeding charging fraud or false statements, whether upon a verdict after trial or upon a plea of guilty or nolo contendere, shall estop the defendant from denying the essential elements of the offense in any action that involves the same transaction as in the criminal proceeding and is brought under § 9-1.1-4(a) or 9-1.1-4(b) .

History of Section. P.L. 2007, ch. 73, art. 18, §§ 1, 2; P.L. 2013, ch. 311, § 1; P.L. 2013, ch. 391, § 1; P.L. 2018, ch. 155, § 1; P.L. 2018, ch. 257, § 1.

Compiler’s Notes.

P.L. 2013, ch. 311, § 1, and P.L. 2013, ch. 391, § 1 enacted identical amendments to this section.

P.L. 2018, ch. 155, § 1, and P.L. 2018, ch. 257, § 1 enacted identical amendments to this section.

9-1.1-6. Subpoenas.

  1. In general:
    1. Issuance and service.  Whenever the attorney general or solicitor has reason to believe that any person may be in possession, custody, or control of any documentary material or information relevant to an investigation, the attorney general or solicitor may, before commencing a civil proceeding under this act, issue in writing and cause to be served upon such person, a subpoena requiring such person:
      1. To produce such documentary material for inspection and copying,
      2. To answer, in writing, written interrogatories with respect to such documentary material or information,
      3. To give oral testimony concerning such documentary material or information, or
      4. To furnish any combination of such material, answers, or testimony.

        The attorney general may delegate the authority to issue subpoenas under this subsection (a) to the state police subject to conditions as the attorney general deems appropriate. Whenever a subpoena is an express demand for any product of discovery, the attorney general, solicitor, or respective delegate shall cause to be served, in any manner authorized by this section, a copy of such demand upon the person from whom the discovery was obtained and shall notify the person to whom such demand is issued of the date on which such copy was served.

    2. Where a subpoena requires the production of documentary material, the respondent shall produce the original of the documentary material, provided, however, that the attorney general or solicitor may agree that copies may be substituted for the originals. All documentary material kept or stored in electronic form, including electronic mail, shall be produced in hard copy, unless the attorney general or solicitor agrees that electronic versions may be substituted for the hard copy. The production of documentary material shall be made at the respondent’s expense.
    3. Contents and deadlines.  Each subpoena issued under paragraph (1):
      1. Shall state the nature of the conduct constituting an alleged violation that is under investigation and the applicable provision of law alleged to be violated.
      2. Shall identify the individual causing the subpoena to be served and to whom communications regarding the subpoena should be directed.
      3. Shall state the date, place, and time at which the person is required to appear, produce written answers to interrogatories, produce documentary material or give oral testimony. The date shall not be less than ten (10) days from the date of service of the subpoena. Compliance with the subpoena shall be at the office of the attorney general or solicitor.
      4. If the subpoena is for documentary material or interrogatories, shall describe the documents or information requested with specificity.
      5. Shall notify the person of the right to be assisted by counsel.
      6. Shall advise that the person has twenty (20) days from the date of service or up until the return date specified in the demand, whichever date is earlier, to move, modify, or set aside the subpoena pursuant to subparagraph (j)(2)(A) of this section.
  2. Protected material or information.
    1. In general.  A subpoena issued under subsection (a) may not require the production of any documentary material, the submission of any answers to written interrogatories, or the giving of any oral testimony if such material, answers, or testimony would be protected from disclosure under:

      (A) The standards applicable to subpoenas or subpoenas duces tecum issued by a court of this state to aid in a grand jury investigation; or

      (B) The standards applicable to discovery requests under the Rhode Island superior court rules of civil procedure, to the extent that the application of such standards to any such subpoena is appropriate and consistent with the provisions and purposes of this section.

    2. Effect on other orders, rules, and laws.  Any such subpoena which is an express demand for any product of discovery supersedes any inconsistent order, rule, or provision of law (other than this section) preventing or restraining disclosure of such product of discovery to any person. Disclosure of any product of discovery pursuant to any such subpoena does not constitute a waiver of any right or privilege which the person making such disclosure may be entitled to invoke to resist discovery of trial preparation materials.
  3. Service in general.  Any subpoena issued under subsection (a) may be served by any person so authorized by the attorney general or by any person authorized to serve process on individuals within Rhode Island, through any method prescribed in the Rhode Island superior court rules of civil procedure or as otherwise set forth in this chapter.
  4. Service upon legal entities and natural persons.
    1. Legal entities.  Service of any subpoena issued under subsection (a) or of any petition filed under subsection (j) may be made upon a partnership, corporation, association, or other legal entity by:
      1. Delivering an executed copy of such subpoena or petition to any partner, executive officer, managing agent, general agent, or registered agent of the partnership, corporation, association or entity;
      2. Delivering an executed copy of such subpoena or petition to the principal office or place of business of the partnership, corporation, association, or entity; or
      3. Depositing an executed copy of such subpoena or petition in the United States mails by registered or certified mail, with a return receipt requested, addressed to such partnership, corporation, association, or entity as its principal office or place of business.
    2. Natural person.  Service of any such subpoena or petition may be made upon any natural person by:
      1. Delivering an executed copy of such subpoena or petition to the person; or
      2. Depositing an executed copy of such subpoena or petition in the United States mails by registered or certified mail, with a return receipt requested, addressed to the person at the person’s residence or principal office or place of business.
  5. Proof of service.  A verified return by the individual serving any subpoena issued under subsection (a) or any petition filed under subsection (j) setting forth the manner of such service shall be proof of such service. In the case of service by registered or certified mail, such return shall be accompanied by the return post office receipt of delivery of such subpoena.
  6. Documentary material.
    1. Sworn certificates.  The production of documentary material in response to a subpoena served under this Section shall be made under a sworn certificate, in such form as the subpoena designates, by:

      (A) In the case of a natural person, the person to whom the subpoena is directed, or

      (B) In the case of a person other than a natural person, a person having knowledge of the facts and circumstances relating to such production and authorized to act on behalf of such person. The certificate shall state that all of the documentary material required by the demand and in the possession, custody, or control of the person to whom the subpoena is directed has been produced and made available to the attorney general or solicitor.

    2. Production of materials.  Any person upon whom any subpoena for the production of documentary material has been served under this section shall make such material available for inspection and copying to the attorney general or solicitor at the place designated in the subpoena, or at such other place as the attorney general or solicitor and the person thereafter may agree and prescribe in writing, or as the court may direct under subsection (j)(1). Such material shall be made so available on the return date specified in such subpoena, or on such later date as the attorney general or solicitor may prescribe in writing. Such person may, upon written agreement between the person and the attorney general or solicitor, substitute copies for originals of all or any part of such material.
  7. Interrogatories.  Each interrogatory in a subpoena served under this section shall be answered separately and fully in writing under oath and shall be submitted under a sworn certificate, in such form as the subpoena designates by:
    1. In the case of a natural person, the person to whom the subpoena is directed, or
    2. In the case of a person other than a natural person, the person or persons responsible for answering each interrogatory. If any interrogatory is objected to, the reasons for the objection shall be stated in the certificate instead of an answer. The certificate shall state that all information required by the subpoena and in the possession, custody, control, or knowledge of the person to whom the demand is directed has been submitted. To the extent that any information is not furnished, the information shall be identified and reasons set forth with particularity regarding the reasons why the information was not furnished.
  8. Oral examinations.
    1. Procedures.  The examination of any person pursuant to a subpoena for oral testimony served under this section shall be taken before an officer authorized to administer oaths and affirmations by the laws of this state or of the place where the examination is held. The officer before whom the testimony is to be taken shall put the witness on oath or affirmation and shall, personally or by someone acting under the direction of the officer and in the officer’s presence, record the testimony of the witness. The testimony shall be taken stenographically and shall be transcribed. When the testimony is fully transcribed, the officer before whom the testimony is taken shall promptly transmit a certified copy of the transcript of the testimony in accordance with the instructions of the attorney general or solicitor. This subsection shall not preclude the taking of testimony by any means authorized by, and in a manner consistent with, the Rhode Island superior court rules of civil procedure.
    2. Persons present.  The investigator conducting the examination shall exclude from the place where the examination is held all persons except the person giving the testimony, the attorney for and any other representative of the person giving the testimony, the attorney for the state, any person who may be agreed upon by the attorney for the state and the person giving the testimony, the officer before whom the testimony is to be taken, and any stenographer taking such testimony.
    3. Where testimony taken.  The oral testimony of any person taken pursuant to a subpoena served under this section shall be taken in the county within which such person resides, is found, or transacts business, or in such other place as may be agreed upon by the attorney general or solicitor and such person.
    4. Transcript of testimony.  When the testimony is fully transcribed, the attorney general or solicitor or the officer before whom the testimony is taken shall afford the witness, who may be accompanied by counsel, a reasonable opportunity to review and correct the transcript, in accordance with the rules applicable to deposition witnesses in civil cases. Upon payment of reasonable charges, the attorney general or solicitor shall furnish a copy of the transcript to the witness, except that the attorney general or solicitor may, for good cause, limit the witness to inspection of the official transcript of the witness’ testimony.
    5. Conduct of oral testimony.
      1. Any person compelled to appear for oral testimony under a subpoena issued under subsection (a) may be accompanied, represented, and advised by counsel, who may raise objections based on matters of privilege in accordance with the rules applicable to depositions in civil cases. If such person refuses to answer any question, a petition may be filed in superior court under subsection (j)(1) for an order compelling such person to answer such question.
      2. If such person refuses any question on the grounds of the privilege against self-incrimination, the testimony of such person may be compelled in accordance with rules of criminal procedure.
    6. Witness fees and allowances.  Any person appearing for oral testimony under a subpoena issued under subsection 9-1.1-6(a) shall be entitled to the same fees and allowances which are paid to witnesses in the superior court.
    7. Custodians of documents, answers, and transcripts.
      1. Designation.  The attorney general, solicitor, or their respective delegate shall serve as custodian of documentary material, answers to interrogatories, and transcripts of oral testimony received under this section.
      2. Except as otherwise provided in this section, no documentary material, answers to interrogatories, or transcripts of oral testimony, or copies thereof, while in the possession of the custodian, shall be available for examination by any individual, except as determined necessary by the attorney general or solicitor and subject to the conditions imposed by him or her for effective enforcement of the laws of this state, or as otherwise provided by court order.
      3. Conditions for return of material.  If any documentary material has been produced by any person in the course of any investigation pursuant to a subpoena under this section and:
        1. Any case or proceeding before the court or grand jury arising out of such investigation, or any proceeding before any state agency involving such material, has been completed, or
        2. No case or proceeding in which such material may be used has been commenced within a reasonable time after completion of the examination and analysis of all documentary material and other information assembled in the course of such investigation, the custodian shall, upon written request of the person who produced such material, return to such person any such material which has not passed into the control of any court, grand jury, or agency through introduction into the record of such case or proceeding.
  9. Judicial proceedings.
    1. Petition for enforcement.  Whenever any person fails to comply with any subpoena issued under subsection (a), or whenever satisfactory copying or reproduction of any material requested in such demand cannot be done and such person refuses to surrender such material, the attorney general or solicitor may file, in the superior court of the county in which such person resides, is found, or transacts business, or the superior court in the he county in which an action filed pursuant to § 9-1.1-4 is pending if the action relates to the subject matter of the subpoena and serve upon such person a petition for an order of such court for the enforcement of the subpoena.
    2. Petition to modify or set aside subpoena.
      1. Any person who has received a subpoena issued under subsection (a) may file, in the superior court of any county within which such person resides, is found, or transacts business, and serve upon the attorney general a petition for an order of the court to modify or set aside such subpoena. In the case of a petition addressed to an express demand for any product of discovery, a petition to modify or set aside such demand may be brought only in the superior court of the county in which the proceeding in which such discovery was obtained is or was last pending. Any petition under this subparagraph (a) must be filed:
        1. Within twenty (20) days after the date of service of the subpoena, or at any time before the return date specified in the subpoena, whichever date is earlier, or
        2. Within such longer period as may be prescribed in writing by the attorney general or solicitor.
      2. The petition shall specify each ground upon which the petitioner relies in seeking relief under subparagraph (a), and may be based upon any failure of the subpoena to comply with the provisions of this section or upon any constitutional or other legal right or privilege of such person. During the pendency of the petition in the court, the court may stay, as it deems proper, the running of the time allowed for compliance with the subpoena, in whole or in part, except that the person filing the petition shall comply with any portion of the subpoena not sought to be modified or set aside.
    3. Petition to modify or set aside demand for product of discovery. In the case of any subpoena issued under subsection (a) which is an express demand for any product of discovery, the person from whom such discovery was obtained may file, in the superior court of the county in which the proceeding in which such discovery was obtained is or was last pending, a petition for an order of such court to modify or set aside those portions of the subpoena requiring production of any such product of discovery, subject to the same terms, conditions, and limitations set forth in subparagraph (j)(2) of this section.
    4. Jurisdiction.  Whenever any petition is filed in any superior court under this subsection (j), such court shall have jurisdiction to hear and determine the matter so presented, and to enter such orders as may be required to carry out the provisions of this section. Any final order so entered shall be subject to appeal in the same manner as appeals of other final orders in civil matters. Any disobedience of any final order entered under this section by any court shall be punished as a contempt of the court.
  10. Disclosure exemption.  Any documentary material, answers to written interrogatories, or oral testimony provided under any subpoena issued under subsection (a) shall be exempt from disclosure under the Rhode Island access to public records law, § 38-2-2 .

History of Section. P.L. 2007, ch. 73, art. 18, §§ 1, 2; P.L. 2012, ch. 217, § 1; P.L. 2012, ch. 227, § 1.

Compiler’s Notes.

P.L. 2012, ch. 217, § 1, and P.L. 2012, ch. 227, § 1 enacted identical amendments to this section.

9-1.1-7. Procedure.

The Rhode Island superior court rules of civil procedure shall apply to all proceedings under this chapter, except when those rules are inconsistent with this chapter.

History of Section. P.L. 2007, ch. 73, art. 18, §§ 1, 2.

9-1.1-8. Funds.

There is hereby created a separate fund entitled the false claims act fund. All proceeds of an action or settlement of a claim brought under this chapter shall be deposited in the fund, with the exception of actions brought directly by a solicitor, in which case the proceeds of an action or settlement of a claim brought under this chapter shall be provided to the respective municipality.

History of Section. P.L. 2007, ch. 73, art. 18, §§ 1, 2; P.L. 2012, ch. 217, § 1; P.L. 2012, ch. 227, § 1.

Compiler’s Notes.

P.L. 2012, ch. 217, § 1, and P.L. 2012, ch. 227, § 1 enacted identical amendments to this section.

9-1.1-9. Powers conferred upon municipal solicitors.

All powers conferred under this chapter upon the attorney general with regard to the state are conferred upon solicitors with regard to their respective municipalities in matters involving an action under the false claims act.

History of Section. P.L. 2012, ch. 217, § 2; P.L. 2012, ch. 227, § 2.

Compiler’s Notes.

P.L. 2012, ch. 217, § 2, and P.L. 2012, ch. 227, § 2 enacted identical versions of this section.

Chapter 2 Parties

9-2-1. Repealed.

History of Section. C.P.A. 1905, § 240; G.L. 1909, ch. 283, § 20; G.L. 1923, ch. 333, § 20; G.L. 1938, ch. 518, § 1; G.L. 1956, § 9-2-1 ; Repealed by P.L. 1965, ch. 55, § 9, effective January 10, 1966 . For provisions governing such joinder in superior courts see Super. Ct. R. Civ. P. Rule 20(a).

9-2-2. Joinder of defendants in action on contract or instrument.

When, in an action on any contract or specialty, including a bill of exchange or a promissory note, the property of a surety, endorser, or drawer has been attached, the property of the promissor, acceptor, or principal, properly before the court, if within its jurisdiction, if not attached at the commencement of the action, may be attached on mesne process or execution, and shall in all cases be first applied in the satisfaction of any judgment recovered therein.

History of Section. C.P.A. 1905, § 241; G.L. 1909, ch. 283, § 21; G.L. 1923, ch. 333, § 21; G.L. 1938, ch. 518, § 2; G.L. 1956, § 9-2-2 ; P.L. 1965, ch. 55, § 8; P.L. 1997, ch. 326, § 15.

Rules of Court.

For rules concerning joinder of parties in superior courts, see Super. Ct. R. Civ. P. Rules 19-21.

Joinder of party in district court, see Dist. Ct. Civil Rules 19-21.

NOTES TO DECISIONS

Necessary Parties.

Where a garnishee holding funds alleged to be due defendant claims he was notified the funds had been assigned to a third person prior to the garnishment action, the assignee should be brought in for the protection of the garnishee. Hanaford v. Hawkins, 18 R.I. 432 , 28 A. 605, 1893 R.I. LEXIS 77 (1893).

This section does not require that the executor or administrator of a deceased joint maker be joined as defendant in an action on a promissory note. Providence County Sav. Bank v. Vadnais, 25 R.I. 295 , 55 A. 754, 1903 R.I. LEXIS 71 (1903).

Promissory Notes.

A defendant in an action on a promissory note cannot have a person made a co-defendant who is liable subsequently to him. Hennessy v. Masterson, 12 R.I. 303 , 1879 R.I. LEXIS 23 (1879).

An action on a promissory note may be brought against the maker and two endorsers jointly. Sawyer v. Brownell, 13 R.I. 141 , 1880 R.I. LEXIS 64 (1880).

— Liability of Partnership.

In suit on notes against personal representative of deceased partner and the partnership, the trial court on motion of personal representative should under G.L. 1896, ch. 233, § 21, have made surviving partner a party to the proceeding. National Exch. Bank v. Galvin, 20 R.I. 159 , 37 A. 811, 1897 R.I. LEXIS 77 (1897).

Partner sued as an endorser on firm paper was not entitled to have co-partner made a party to suit, but should have moved to have the firm as maker of the note brought in. National Exch. Bank v. Lubrano, 29 R.I. 64 , 68 A. 944, 1908 R.I. LEXIS 7 (1908).

9-2-3, 9-2-4. Repealed.

History of Section. C.P.A. 1905, §§ 243, 244; G.L. 1909, ch. 283, §§ 23, 24; G.L. 1923, ch. 333, §§ 23, 24; G.L. 1938, ch. 518, §§ 3, 4; G.L. 1956, §§ 9-2-3 , 9-2-4; Repealed by P.L. 1965, ch. 55, § 9, effective January 10, 1966. For rule governing nonjoinder and misjoinder of parties in superior and district courts, see Super. Ct. R. Civ. P. Rules 19(b), 21.

9-2-5. Proceedings unimpaired by changes in parties.

No change of parties made by order of the court shall impair any previous attachment of the estate or arrest of the body of any defendant remaining in the action, nor impair any bond or bail given by any party remaining, either as against himself or herself or his or her sureties. And in all the above cases, the writ shall be amended accordingly.

History of Section. C.P.A. 1905, § 245; G.L. 1909, ch. 283, § 25; G.L. 1923, ch. 333, § 25; G.L. 1938, ch. 518, § 5; G.L. 1956, § 9-2-5 ; P.L. 1965, ch. 55, § 8.

Rules of Court.

For substitution of parties, see Super. Ct. R. Civ. P. Rule 25.

NOTES TO DECISIONS

Attachment Bond.

Surety on a bond to release attachment was liable on the bond, even though the action was subsequently dismissed as to several of the defendants, where parties against whom judgment was taken were original parties to suit. Bedard v. Mahoney, 30 R.I. 469 , 76 A. 113, 1910 R.I. LEXIS 41 (1910).

9-2-6. Liability of representatives of deceased joint contractor.

Unless otherwise provided in the contract, upon the death of any joint contractor, his or her representatives may be charged in the same manner as such representatives might have been charged if the contract had been several instead of joint; provided, that the plaintiff shall first exhaust the partnership estate if the joint contract is a partnership contract.

History of Section. C.P.A. 1905, § 237; G.L. 1909, ch. 283, § 17; G.L. 1923, ch. 333, § 17; G.L. 1938, ch. 476, § 1; G.L. 1956, § 9-2-6 .

NOTES TO DECISIONS

Partnership Estate.

Partnership debts become joint and several on the decease of one of the partners. Nathanson v. Spitz, 19 R.I. 70 , 31 A. 690, 1895 R.I. LEXIS 36 (1895).

In the suit involving notes, the representative of deceased partner cannot be charged for a partnership debt on which he was jointly liable till the plaintiff shall have first exhausted the partnership estate. National Exch. Bank v. Galvin, 20 R.I. 159 , 37 A. 811, 1897 R.I. LEXIS 77 (1897).

Remedial Nature.

This section applied to obligations outstanding in 1893 since the changes made by the Judiciary Act of 1893 were remedial rather than changing substantial rights. Island Sav. Bank v. Galvin, 20 R.I. 347 , 39 A. 196, 1898 R.I. LEXIS 57 (1898).

9-2-7. Effect of judgment against part of joint contractors.

No judgment, without complete satisfaction, rendered against a part only of the defendants in any action upon a joint contract shall be a bar to any future action on the contract, for any unsatisfied balance due, against such of the defendants upon whom or whose estate the writ in the original action shall not have been served.

History of Section. C.P.A. 1905, § 238; G.L. 1909, ch. 283, § 18; G.L. 1923, ch. 333, § 18; G.L. 1938, ch. 476, § 2; G.L. 1956, § 9-2-7 .

NOTES TO DECISIONS

Service.

Service on only part of the defendants in an action upon a joint contract is sufficient to give the court jurisdiction, and the settled practice has been to serve the writ upon such of the defendants as are within the jurisdiction and to proceed only against them. Nathanson v. Spitz, 19 R.I. 70 , 31 A. 690, 1895 R.I. LEXIS 36 (1895).

Collateral References.

Contract, release of one of several joint or joint and several obligors on, as affecting liability of other obligors. 53 A.L.R. 1420.

9-2-8. Assignee of nonnegotiable chose in action.

The assignee of a nonnegotiable chose in action which has been assigned in writing may maintain an action thereon in his or her own name, but subject to all defenses and rights of counterclaim, recoupment, or setoff to which the defendant would have been entitled had the action been brought in the name of the assignor.

History of Section. G.L., ch. 333, § 30, as enacted by P.L. 1938, ch. 2615, § 1; G.L. 1938, ch. 509, § 2; G.L. 1956, § 9-2-8 .

Cross References.

Rights of holder of negotiable instrument, §§ 6A-3-301 et seq., and 18-4-17 et seq.

Comparative Legislation.

Rights of assignee:

Conn. Gen. Stat. § 52-118.

Mass. Ann. Laws, ch. 231, § 5.

NOTES TO DECISIONS

Agents.

An association whose by-laws provided that a member accepting a contract for which he was not the lowest bidder should pay to the lowest bidder ten percent of such lowest bid, collectible in an action by the association for the use of such lowest bidder, was not an assignee, but only an agent of the lowest bidder, and could not bring such action in its own name for the use and benefit of the lowest bidder. United Master Plumbers Ass'n v. Bookbinder Plumbing & Heating Co., 99 R.I. 683 , 210 A.2d 573, 1965 R.I. LEXIS 501 (1965).

Assignments.

Plaintiff could not maintain an action as assignee where the evidence failed to establish the making and delivery of a valid assignment to plaintiff. Plotkin v. Danakos, 71 R.I. 24 , 41 A.2d 470, 1945 R.I. LEXIS 10 (1945).

An assignment of a nonnegotiable chose in an action cannot be proven by operation of law and the conduct of the parties; an assignment must be in writing and there must be evidence to establish the making and the delivery thereof. Lombardi v. Electromet Co., 540 A.2d 16, 1988 R.I. LEXIS 49 (1988).

Under the Uniform Commercial Code a transferee may assert such rights as could have been asserted by a transferor. Further, an assignee even of a nonnegotiable chose in action that has been assigned in writing may maintain an action thereon in his own name, but subject to all defenses and rights of counterclaim, recoupment, or setoff to which a defendant would have been entitled had the action been brought in the name of an assignor. Certainly an assignee of a negotiable instrument that has not been negotiated by endorsement should have no lesser right subject to all statutory and common-law defenses. New Bedford Inst. for Sav. v. Calcagni, 676 A.2d 318, 1996 R.I. LEXIS 141 (1996).

Trial court acted within its discretion in denying city’s motion for judgment on partial findings based on a city’s argument that a taxpayer lacked standing to prosecute tax appeals for certain years when it did not own the property because: (1) the taxpayer was aggrieved within the meaning of R.I. Gen. Stat. § 44-5-26(a) and its standing flowed from its status as a successor-in-interest to the prior owner; and (2) R.I. Gen. Laws § 9-2-8 impliedly authorized the assignment because the transfer of the appeals appeared to be a market assignment involving a finite, purely economic transaction. Weybosset Hill Invs., LLC v. Rossi, 857 A.2d 231, 2004 R.I. LEXIS 153 (2004).

R.I. Gen. Laws § 9-2-8 applied to a sub-subcontractor’s (SSC) action against a general contractor, as the SSC’s claim was a nonnegotiable “chose in action”; the fact that the claim might serve as security for a negotiable instrument was immaterial. Piccoli & Sons, Inc. v. E & C Constr. Co., 64 A.3d 308, 2013 R.I. LEXIS 64 (2013).

As none of the documents provided by a sub-subcontractor referred to its claim against a general contractor, they did not constitute a written assignment of that claim, as required by R.I. Gen. Laws § 9-2-8 ; accordingly, there was no basis to substitute an alleged assignee as a party plaintiff pursuant to R.I. Super. Ct. R. Civ. P. 25 (c). Piccoli & Sons, Inc. v. E & C Constr. Co., 64 A.3d 308, 2013 R.I. LEXIS 64 (2013).

Collateral References.

Carriers, right of assignee of aggrieved party to maintain action to recover excessive freight charge. 13 A.L.R. 298.

Corporate stock, shares of, as within statute enabling assignee to maintain action in his own name. 23 A.L.R. 1322.

Enforceability by purchaser of a business, of a covenant of a third person with his vendor not to engage in a similar business. 4 A.L.R. 1078; 22 A.L.R. 754.

Local improvements, power of municipality to transfer or assign its right to enforce assessment or lien of. 55 A.L.R. 667.

Option to purchase contained in lease, right of assignee to enforce. 38 A.L.R. 1163.

9-2-9. Restricted liability on instrument signed as fiduciary.

Where an instrument contains, or a person adds to his or her signature, words indicating that he or she contracts or signs in his or her representative capacity as trustee, executor, administrator, guardian, or conservator, he or she shall not be personally liable on the instrument, if he or she was duly authorized to make the instrument in his or her representative capacity; should an action on the instrument be brought against the trustee, executor, administrator, guardian, or conservator in his or her representative capacity, or against his or her successor, an execution on any judgment obtained against him or her shall run only against the goods, chattels, and real estate of the estate in the hands and possession of the trustee, executor, administrator, guardian, or conservator, or his or her successor, and not against his or her own property and estate; provided, that upon a suggestion of waste as provided in § 33-9-28 , a civil action may be brought against him or her personally in the manner provided in § 33-9-28 , and the procedure shall be in conformity with § 33-9-28 and applicable procedural rules.

History of Section. G.L., ch. 208, § 24, as enacted by C.P.A. 1905, § 1147; G.L. 1909, ch. 259, § 24; G.L. 1923, ch. 303, § 24; G.L. 1938, ch. 529, § 1; G.L. 1956, § 9-2-9 ; P.L. 1965, ch. 55, § 8; P.L. 1997, ch. 326, § 15.

NOTES TO DECISIONS

Public Official.

A town treasurer is not included in the provisions of this section. Barber v. Barber, 32 R.I. 266 , 79 A. 482, 1911 R.I. LEXIS 19 (1911), overruled, Richmond v. Kettelle, 42 R.I. 192 , 106 A. 292, 1919 R.I. LEXIS 22 (1919).

Suits Against Fiduciaries.

Where plaintiff sued on contract for sale of stock, and the signatures of defendants to the contract were followed by the words “trustees under clause of will” or “trustees under indenture of trust,” such pleading was not subject to demurrer on ground that defendants are not personally liable since the questions of whether such words appearing after the signature of defendants showed that they were signing in a representative capacity, or were merely descriptio personae, were questions of fact which required the introduction of evidence. 91065 Corp. v. Industrial Nat'l Bank, 94 R.I. 424 , 181 A.2d 239, 1962 R.I. LEXIS 96 (1962).

9-2-10. Association defined.

Any unincorporated organization of persons, except a partnership, is deemed an association within the meaning of §§ 9-2-11 9-2-15 .

History of Section. P.L. 1906, ch. 1348, § 1; G.L. 1909, ch. 300, § 30; G.L. 1923, ch. 350, § 30; G.L. 1938, ch. 530, § 1; G.L. 1956, § 9-2-10 .

9-2-11. Actions by trustee for unincorporated associations.

Any action or other civil proceeding may be maintained by any officer or member of an unincorporated association as trustee in its behalf, if so authorized by the association, to recover any property or upon any cause of action for or upon which all the associates may maintain such action or proceeding by reason of their interest or ownership therein, either jointly or in common. Any action or other civil proceeding may likewise be maintained by such officer or member to recover from one or more members of the association his or her or their proportionate share of any money lawfully expended by the association for the benefit of the associates or to enforce any lawful claim of the association against the member or members.

History of Section. P.L. 1906, ch. 1348, § 1; G.L. 1909, ch. 300, § 30; G.L. 1923, ch. 350, § 30; G.L. 1938, ch. 530, § 1; G.L. 1956, § 9-2-11 ; P.L. 1966, ch. 1, § 5.

Cross References.

Labor organizations, actions by, § 28-8-1 et seq.

Collateral References.

Insurance, actions by or against reciprocal insurance association. 94 A.L.R. 851; 854; 141 A.L.R. 765; 145 A.L.R. 1121.

Modern status of the Massachusetts or business trust. 88 A.L.R.3d 704.

9-2-12. Actions against unincorporated associations.

Any action or other civil proceeding may be maintained to recover any property or upon any cause of action for or upon which the plaintiff may maintain such an action or proceeding against all the associates, by reason of their interest or ownership, or claim of ownership therein, against the president and secretary of the association, or the officers or members exercising substantially the duties, respectively, of president and secretary, or if there is no such officer, or officers, or members exercising such duties, or either of them, then against any other two (2) officers of the association, or if there is but one officer, then against the single officer, or if there is no officer known to the plaintiff, then against any member of the association, describing the officer or officers, member or members, as the representative or representatives of the association.

History of Section. P.L. 1906, ch. 1348, § 1; G.L. 1909, ch. 30, § 30; G.L. 1923, ch. 350, § 30; G.L. 1938, ch. 530, § 1; G.L. 1956, § 9-2-12 ; P.L. 1966, ch. 1, § 5.

NOTES TO DECISIONS

Federal Practice.

Since under Rhode Island practice a suit against a union may be brought either under the provisions of this section or under the common law by naming all the members of the union it is proper in federal court to sue such union by naming only a portion of the members of the union as a suit by representation under the Federal Rules of Civil Procedure, Rule 23(a)(1), notwithstanding the fact that the officers named by this section were not included. Oskoian v. Canuel, 269 F.2d 311, 1959 U.S. App. LEXIS 4753 (1st Cir. 1959). See also Canuel v. Oskoian, 184 F. Supp. 70, 1960 U.S. Dist. LEXIS 3708 (D.R.I. 1960).

Because dismissal under R.C.P. 12(b)(5) for insufficiency of process is not an adjudication on the merits, it was error for the trial justice to dismiss a complaint with prejudice where the defect was failure to name the president and secretary of the defendant unincorporated association pursuant to the requirements of this section. School Comm. v. North Providence Fed'n of Teachers, 122 R.I. 105 , 404 A.2d 493, 1979 R.I. LEXIS 2072 (1979).

Parties to Suit.

An unincorporated association is not a proper party in a lawsuit under the law of Rhode Island. Walsh v. Israel Couture Post, No. 2274 V.F.W, 542 A.2d 1094, 1988 R.I. LEXIS 102 (1988); Corrente v. Rhode Island, Dep't of Corrections, 759 F. Supp. 73, 1991 U.S. Dist. LEXIS 3644 (D.R.I. 1991).

Purpose of Section.

The requirement under this section that service of process shall be made upon certain designated officers or members of such an association was designed to give due notice of the institution of an action against such an association, as to insure its adequate representation in such action so as to safeguard the property rights of the association, and as such was procedural only. Canuel v. Oskoian, 23 F.R.D. 307, 1959 U.S. Dist. LEXIS 4245 (D.R.I.), aff'd, 269 F.2d 311, 1959 U.S. App. LEXIS 4753 (1st Cir. 1959).

Collateral References.

Damage actions against unions for violation of statutes regulating or prohibiting coercive action by labor unions in jurisdictional disputes. 33 A.L.R.2d 340.

Insurance contract, unincorporated association issuing, as subject to suit as entity in name in which it contracts. 88 A.L.R. 164.

Labor organizations, liability to suit. 27 A.L.R. 786; 149 A.L.R. 508.

Name of unincorporated association, amendment of process or pleading by changing or correcting mistake in. 124 A.L.R. 131.

Suits by union members against union officers under 29 USCS § 501(b). 114 A.L.R. Fed. 417.

Venue of action against unincorporated association. 145 A.L.R. 700.

9-2-13. Death or incapacity of member or representative of association.

The death or legal incapacity of a member of the association shall not affect an action or other civil proceeding brought as provided in §§ 9-2-11 and 9-2-12 . If either of the officers or persons by or against whom the action or other civil proceeding is brought dies, is removed, resigns, or becomes otherwise incapacitated during the pendency thereof, the court before which the action or proceeding is pending shall make an order directing the action or proceeding to be continued by or against his or her successor in office or by or against any other officer or member who might have been a party originally to the action or proceeding.

History of Section. P.L. 1906, ch. 1348, § 2; G.L. 1909, ch. 300, § 31; G.L. 1923, ch. 350, § 31; G.L. 1938, ch. 530, § 2; G.L. 1956, § 9-2-13 ; P.L. 1966, ch. 1, § 5; P.L. 1997, ch. 326, § 15.

9-2-14. Judgment and execution against association.

In an action or proceeding brought pursuant to §§ 9-2-11 and 9-2-12 , the officers or members against whom the action is brought shall not be arrested; and a judgment against them shall not authorize an execution to be issued against their property or person. When the judgment is for a sum of money, an execution issued thereon must require the officer serving the execution to satisfy the execution out of any personal or real property belonging to the association or owned jointly or in common by all members thereof.

History of Section. P.L. 1906, ch. 1348, § 3; G.L. 1909, ch. 300, § 32; G.L. 1923, ch. 350, § 32; G.L. 1938, ch. 530, § 3; G.L. 1956, § 9-2-14 ; P.L. 1997, ch. 326, § 15.

9-2-15. Actions against members prohibited pending action against association.

When any action or proceeding is brought to recover any property, or upon any cause of action for or upon which the plaintiff may maintain such an action or proceeding against all the associates by reason of their interest or ownership or claim of ownership therein as provided in §§ 9-2-10 9-2-14 , no action or other civil proceeding for the same cause of action shall be brought to recover a personal judgment against the members of the association or any of them until after final judgment in the first action or proceeding and the return of any execution issued thereon wholly or partially unsatisfied.

History of Section. P.L. 1906, ch. 1348, § 4; G.L. 1909, ch. 300, § 33; G.L. 1923, ch. 350, § 33; G.L. 1938, ch. 530, § 4; G.L. 1956, § 9-2-15 ; P.L. 1966, ch. 1, § 5.

9-2-16. Joinder of husband and wife as plaintiffs.

A husband and wife may join as parties plaintiffs in the same action to recover damages for negligence and shall be entitled to recover their respective damages in that action.

History of Section. P.L. 1965, ch. 217, § 1.

9-2-17. Joinder of registered owner and operator of motor vehicle as defendants in action for negligence.

A plaintiff may join the registered owner and operator of a motor vehicle in an action to recover damages for negligence. Nothing herein shall be deemed to deprive the owner or operator of any defense he or she may have.

History of Section. P.L. 1965, ch. 218, § 1.

9-2-18. Acceleration of actions when party 65 or older.

Any civil action in which a plaintiff or a defendant has attained the age of sixty-five (65) years, and is not a corporation, partnership, association, or other such entity, shall be accelerated to trial at the request of the party. This section shall not be construed so as to preclude reasonable discovery.

History of Section. P.L. 1984, ch. 347, § 1; P.L. 1987, ch. 80, § 1.

NOTES TO DECISIONS

Continuance Denied.

Continuance to allow a wrongful death defendant to obtain new trial counsel was properly denied because the trial justice properly balanced the aged parents’ interest in an accelerated trial of their wrongful death claim, to which they were entitled under R.I. Gen. Laws §§ 9-2-18 and 9-2-20 . The defendant was well apprised of the fact that he might be without counsel, and he had made little effort to obtain counsel who could take over his case without requesting yet another continuance. Tyre v. Swain, 946 A.2d 1189, 2008 R.I. LEXIS 57 (2008).

9-2-18.1. Acceleration of action for enforcement of mechanics’ lien.

Upon motion of any party in an action to enforce a mechanics’ lien, or in an action on a bond or cash escrow provided pursuant to § 34-28-17 , the court may grant that the hearing on the petition shall be given priority on the calendar.

History of Section. P.L. 1990, ch. 25, § 1; P.L. 1991, ch. 328, § 5.

9-2-19. Malpractice actions.

Any civil action filed on or after January 1, 1987, for personal injury or wrongful death filed against a licensed physician, hospital, clinic, health maintenance organization, professional service corporation providing health care services, dentist, or dental hygienist based on professional negligence in which the parties agree that the damages, if liability is proven, are likely to be in the sum of one hundred thousand dollars ($100,000) or more, or if the court upon motion by either party finds that the damages, if liability is proven, are likely to be in the sum of one hundred thousand dollars ($100,000) or more, shall be given priority for expedited hearing. This section shall not be construed so as to preclude adequate time for reasonable discovery.

History of Section. P.L. 1986, ch. 350, § 10.

Collateral References.

Hospital liability as to diagnosis and care of patients in emergency room. 58 A.L.R.5th 613.

Liability of orthodontist for malpractice. 81 A.L.R.4th 632.

Medical-malpractice countersuits. 61 A.L.R.5th 307.

Medical malpractice: measure and elements of damages in actions based on loss of chance. 81 A.L.R.4th 485.

Validity, construction, and application of state statutory provisions limiting amount of recovery in medical malpractice claims. 26 A.L.R.5th 245.

9-2-20. Acceleration of actions involving $100,000 or more.

Any civil action filed for personal injury, property damage, or wrongful death in which the parties agree that the damages, if liability is proven, are likely to be in the sum of one hundred thousand dollars ($100,000) or more, or if the court upon motion by either party finds that the damages, if liability is proven, are likely to be in the sum of one hundred thousand ($100,000) or more, shall be given priority for expedited hearing. This section shall not be construed so as to preclude adequate time for reasonable discovery.

History of Section. P.L. 1987, ch. 522, § 4.

NOTES TO DECISIONS

Continuance Denied.

Continuance to allow an wrongful death defendant to obtain new trial counsel was properly denied because the trial justice properly balanced the aged parents’ interest in an accelerated trial of their wrongful death claim, to which they were entitled under R.I. Gen. Laws §§ 9-2-18 and 9-2-20 . The defendant was well apprised of the fact that he might be without counsel, and he had made little effort to obtain counsel who could take over his case without requesting yet another continuance. Tyre v. Swain, 946 A.2d 1189, 2008 R.I. LEXIS 57 (2008).

Chapter 3 Liens Against Causes of Action

9-3-1. Attorney’s lien — Creation.

Whenever the relationship of attorney and client has been entered into by an implied or express contract for service, wherein the attorney does not agree to be responsible for costs of suit, the attorney shall have a lien to the value of his or her contractual interests in the cause of action, claim, demand, counterclaim, or other matter concerning which the contract is entered into.

History of Section. P.L. 1917, ch. 1515, § 1; G.L. 1923, ch. 301, § 32; P.L. 1931, ch. 1761, § 1; G.L. 1938, ch. 450, § 1; G.L. 1956, § 9-3-1 .

Comparative Legislation.

Attorney’s lien:

Mass. Ann. Laws, ch. 221, § 50 et seq.

NOTES TO DECISIONS

Contracts With Minors.

A contract with a minor is voidable and it is for the jury to decide whether there was a contract repudiation, and the value of services rendered. Jacobs v. United E. R. Co., 46 R.I. 230 , 125 A. 286, 1924 R.I. LEXIS 68 (1924).

The value of a contract with a minor was the reasonable value of the services, rather than the amount agreed upon. Jacobs v. United E. R. Co., 46 R.I. 230 , 125 A. 286, 1924 R.I. LEXIS 68 (1924).

Priority of Lien.

An attorney’s lien under this section on a particular fund created through the attorney’s efforts takes priority over other liens filed against that fund. Thus a chapter 11 debtor’s attorney’s lien on a settlement fund set up in an action contesting an insurer’s disclaimer of liability was superior to the tax administrator’s prior lien against the debtor. In re Robert E. Derecktor, Inc., 152 B.R. 14, 1993 Bankr. LEXIS 437 (Bankr. D.R.I. 1993).

Worker’s Compensation Act.

A promise of a possible retainer in commutation proceedings under Workmen’s Compensation Act was too indefinite to create a lien. Votolato v. Rhode Island Supply Co., 70 R.I. 1 , 36 A.2d 90, 1944 R.I. LEXIS 7 (1944).

Under the Workmen’s Compensation Act, approval of a contingent fee by the superior court [now workmen’s compensation commission] under G.L. 1938, ch. 300, art. II, § 3 [§ 28-33-3 ] is necessary before the lien can be enforced. Carty v. American Mut. Liab. Ins. Co., 70 R.I. 472 , 40 A.2d 597, 1944 R.I. LEXIS 72 (1944).

Collateral References.

Alimony or child-support awards as subject to attorneys’ liens. 49 A.L.R.5th 595.

Associate or assistant counsel engaged by attorney retained by client, right of to lien. 90 A.L.R. 277.

Attorney’s charging lien as including services rendered or disbursements made in other than instant action or proceeding. 23 A.L.R.4th 336.

Attorney’s charging lien upon continuing payments to which client becomes entitled as result of litigation. 99 A.L.R.2d 451.

Circumstances under which attorney retains right to compensation notwithstanding voluntary withdrawal from case. 53 A.L.R.5th 287.

Corporation, attorney’s fees and other expenses incident to controversy respecting internal affairs of, as charge against corporation. 152 A.L.R. 909; 39 A.L.R.2d 580.

Costs, right to as between attorney and client. 22 A.L.R. 1203.

Decedent’s estate, attorney’s lien on. 50 A.L.R. 657.

Decedent’s estate or trust, attorney’s right to lien in respect to client’s share or interest in. 175 A.L.R. 1132.

Insolvency, attorney as within statute giving lien or preference in event of, to servants, employees, laborers, etc. 54 A.L.R. 569; 111 A.L.R. 1454; 142 A.L.R. 362.

Judicial sale, attorney’s lien on property purchased by client on sale under a judgment procured by attorney. 2 A.L.R. 483.

Limitation to quantum meruit recovery, where attorney employed under contingent-fee contract is discharged without cause. 56 A.L.R.5th 1.

Method of calculating attorneys’ fees awarded in common-fund or common-benefit cases-state cases. 56 A.L.R.5th 107.

Papers or securities that come into attorney’s possession other than in his professional capacity. 2 A.L.R. 1448; 23 A.L.R. 584.

Payment into court or to clerk of court as affecting rights, liability and procedure in respect of lien of judgment creditor’s attorney. 93 A.L.R. 696.

Priority between attorney’s charging lien against judgment and opposing party’s right of setoff against same judgment. 27 A.L.R.5th 764.

Property recovered by client, lien on. 93 A.L.R. 667.

Public property or fund, lien on. 2 A.L.R. 274; 24 A.L.R. 933.

Right of attorney to set off claim for unrelated services against client’s claim for money collected. 173 A.L.R. 429.

Rights and remedies of client as regards papers and documents on which attorney has retaining lien. 3 A.L.R.2d 148.

Solicitation, right of attorney to lien for services performed under contract procured by. 86 A.L.R. 517.

Statute relating to attorney’s lien as affecting common law or equitable lien. 120 A.L.R. 1243.

Substitution by court of security for attorney’s lien. 33 A.L.R. 1296.

United States, contract giving attorney lien on claim against, for legal services, as assignment of claim. 64 A.L.R. 611.

Workmen’s Compensation Act, compensation of attorneys for services in connection with claim under. 159 A.L.R. 912.

9-3-2. Operation of attorney’s lien.

From the time notice is given by an attorney of the relationship of attorney and client to the person or party against whom a claim, demand, or counterclaim is made, or a cause of action or other matter is pending, the attorney’s implied or express agreement shall begin to operate as a lien, and no settlement either before or after judgment shall invalidate it, but it may be enforced like any other lien against the money or thing of value which is the consideration for the settlement, or the parties, if they have made a settlement, may be proceeded against jointly or severally in an action on the case at law and shall be jointly or severally liable to the attorney for the full value of his or her lien in accordance with his or her implied or express agreement.

History of Section. P.L. 1917, ch. 1515, § 1; G.L. 1923, ch. 301, § 32; P.L. 1931, ch. 1761, § 1; G.L. 1938, ch. 450, § 1; G.L. 1956, § 9-3-2 .

Cross References.

Effect of assignment for benefit of creditors, § 10-4-6 .

NOTES TO DECISIONS

Creditors of Attorney.

The client has priority in reaching the funds secured to the attorney, in order to obtain repayment of loans to the attorney, over a subsequent assignee of the attorney. Campbell v. Lederer Realty Corp., 49 R.I. 276 , 142 A. 332, 1928 R.I. LEXIS 51 (1928).

Funds in Registry of Court.

When the court has directed that funds be deposited in the registry of the court for the protection of the claimants, it is not required by this section to permit the funds to be subjected to a lien in favor of the clients’ attorney. Campbell v. Lederer Realty Corp., 49 R.I. 276 , 142 A. 332, 1928 R.I. LEXIS 51 (1928).

Settlements by Clients.

The lien statute does not interfere with the right of the client to settle contrary to the advice or the wish of his attorney, provided such settlement is made without fraud upon the attorney’s rights. Cawley v. Burke, 43 R.I. 188 , 110 A. 609, 1920 R.I. LEXIS 52 (1920).

Collateral References.

Declaratory judgment as to attorney’s lien. 12 A.L.R. 52; 19 A.L.R. 1124; 50 A.L.R. 42; 68 A.L.R. 110; 87 A.L.R. 1205.

Limitation to quantum meruit recovery, where attorney employed under contingent-fee contract is discharged without cause. 56 A.L.R.5th 1.

Means of enforcing or making effective attorney’s retaining lien. 111 A.L.R. 487.

Method of calculating attorneys’ fees awarded in common-fund or common-benefit cases-state cases. 56 A.L.R.5th 107.

Property recovered by client, enforcement of attorney’s lien on. 93 A.L.R. 696.

Sufficiency of notice to opposing party (or of serving or filing thereof) required to establish attorney’s lien upon client’s claim or cause of action. 85 A.L.R.2d 859.

Summary proceedings, enforcement of attorney’s lien by. 93 A.L.R. 699.

9-3-3. Enforcement of attorney’s lien.

Any lien created by the provisions of §§ 9-3-1 and 9-3-2 may, at the election of the attorney, be established, foreclosed, and enforced by a civil action, which action may be tried and determined according to the usages in chancery and the principles of equity.

History of Section. G.L., ch. 301, § 32, as enacted by P.L. 1931, ch. 1761, § 1; G.L. 1938, ch. 450, § 1; G.L. 1956, § 9-3-3 ; P.L. 1965, ch. 55, § 10.

NOTES TO DECISIONS

Bill of Discovery.

Even though a valid settlement may be effected by the parties without the knowledge of the attorney, such conduct is censurable and if a proper showing is made, the attorney might be entitled to a bill of discovery to assist him in establishing his lien. Carroll v. C. I. Hayes, Inc., 56 R.I. 105 , 184 A. 181, 1936 R.I. LEXIS 87 (1936).

Where bill of discovery failed to give any particulars as to the manner in which notice of the attorney-client relationship was “filed” or to state the means employed to bring the matter to the attention of the parties, such indefinite and general allegations do not aid the court in determining either that the attorneys are entitled to the information sought by the bill or that such information is relevant, material and necessary to the prosecution of their claim. Carroll v. C. I. Hayes, Inc., 56 R.I. 105 , 184 A. 181, 1936 R.I. LEXIS 87 (1936).

Verdict.

In an action brought to enforce an attorney’s lien where the verdict was “that the defendant did not promise” whereas it should have been “that the defendant is not guilty” it was the duty of the court to see that the verdict of the jury was in proper form and to make the necessary amendments. Going v. Vallesi, 52 R.I. 113 , 158 A. 148, 1932 R.I. LEXIS 5 (1932).

Collateral References.

Terms of attorney’s contingent fee contract as creating equitable lien in his favor. 143 A.L.R. 204.

9-3-4. Hospital lien on claim for personal injuries.

Every association, corporation, or other institution, including a municipal corporation, maintaining a hospital in the state, which shall furnish medical or other service to any patient injured by reason of an accident not covered by the workers’ compensation act, shall, if the injured party shall assert or maintain a claim against another for damages on account of the injuries, have a lien upon that part going or belonging to the patient, of any recovery or sum had or collected or to be collected by the patient, or by his or her heirs or personal representatives in the case of his or her death, whether by judgment or by settlement or compromise, to the amount of the reasonable and necessary charges of the hospital up to the date of payment of the damages; provided, however, that the lien herein set forth shall not be applied or considered valid against anyone coming under the workers’ compensation act in this state; and, provided, further, that nothing herein enacted shall be so construed as to give the lien herein created precedence over the lien of an attorney.

History of Section. P.L. 1939, ch. 708, § 1; G.L. 1956, § 9-3-4 .

Cross References.

Licensing of health care facilities, § 23-17-1 et seq.

Collateral References.

Construction, operation, and effect of statute giving hospital lien against recovery from tortfeasor causing patient’s injuries. 16 A.L.R.5th 262.

9-3-5. Notice of hospital lien.

No hospital lien shall be effective unless a written notice containing the name and address of the injured person, the date of the accident, the name and location of the hospital, and the name of the person or persons, firm or firms, corporation or corporations alleged to be liable to the injured party for the injuries received shall be filed in the office of the city or town clerk in which the hospital is located, prior to the payment of any money to the injured person, his or her attorneys, or legal representatives as compensation for the injuries; nor unless the hospital shall also mail, postage prepaid, a copy of the notice with a statement of the date of filing thereof to the injured person and to the person or persons, firm or firms, corporation or corporations alleged to be liable to the injured party for the injuries sustained prior to the payment of any money to the injured person, his or her attorneys, or legal representative as compensation for the injuries. The hospital shall mail a copy of the notice to any insurance carrier which has insured the person, firm, or corporation against such liability.

History of Section. P.L. 1939, ch. 708, § 2; G.L. 1956, § 9-3-5 .

Cross References.

Effect of assignment for benefit of creditors, § 10-4-6 .

Collateral References.

Construction, operation, and effect of statute giving hospital lien against recovery from tortfeasor causing patient’s injuries. 16 A.L.R.5th 262.

9-3-6. Liability for payments to patient without honoring hospital lien.

Any person or persons, firm or firms, corporation or corporations, making any payment to a hospital patient or to his or her attorneys or heirs or legal representatives as compensation for the injury sustained, after the filing and mailing of the notice provided in § 9-3-5 , without paying to the hospital the amount of its lien or so much thereof as can be satisfied out of the money due under any final judgment or compromise or settlement agreement after paying the amount of any prior liens, shall, for a period of one year from the date of payment to the patient or his or her heirs, attorneys, or legal representatives, be and remain liable to the hospital for the amount which the hospital was entitled to receive; and any such association, corporation, or other institution maintaining the hospital may, within such period, enforce its lien by a suit at law against the person or persons, firm or firms, corporation or corporations, making any such payment.

History of Section. P.L. 1939, ch. 708, § 3; G.L. 1956, § 9-3-6 ; P.L. 1997, ch. 326, § 16.

Collateral References.

Construction, operation, and effect of statute giving hospital lien against recovery from tortfeasor causing patient’s injuries. 16 A.L.R.5th 262.

9-3-7. Examination of hospital records.

Any person or persons, firm or firms, corporation or corporations legally liable for a hospital lien or against whom a claim shall be asserted for compensation for injuries, shall be permitted to examine the records of any such association or other institution or body maintaining the hospital in reference to the treatment, care, and maintenance of the injured person.

History of Section. P.L. 1939, ch. 708, § 4; G.L. 1956, § 9-3-7 .

Collateral References.

Construction, operation, and effect of statute giving hospital lien against recovery from tortfeasor causing patient’s injuries. 16 A.L.R.5th 262.

9-3-8. Hospital lien docket.

Every city or town clerk shall, at the expense of the city or town, provide a suitable well bound book to be called the hospital lien docket in which, upon the filing of any lien claim under the provisions of §§ 9-3-4 9-3-7 , he or she shall enter the name of the injured person, the name of the person, firm, or corporation alleged to be liable for the injuries, the name of an insurance carrier where it is known at the time of filing of the notice, the date of the accident, and the name of the hospital or other institution making the claim, and the clerk shall index the lien in the name of the injured person and the hospital and in the name of the insurance carrier where the name of the carrier is known at the time of filing the notice.

History of Section. P.L. 1939, ch. 708, § 5; G.L. 1956, § 9-3-8 .

Collateral References.

Construction, operation, and effect of statute giving hospital lien against recovery from tortfeasor causing patient’s injuries. 16 A.L.R.5th 262.

9-3-9. Motor vehicle repairer’s lien.

Every motor vehicle repairer who shall furnish material and labor, or either, in the repair of a motor vehicle shall, if the owner of the vehicle has insured the automobile against damage or loss by collision, have a lien upon any payment due the owner of the vehicle, his or her representative, or assignee, on account of the insurance, to the amount of the reasonable and necessary charges of the repairer up to the date of payment of the amount; provided, however, that nothing herein contained shall be construed to give the lien herein created precedence over the lien of an attorney.

History of Section. P.L. 1962, ch. 40, § 1.

9-3-10. Notice of repairer’s lien.

The lien provided in § 9-3-9 shall be effective only if a written notice containing the name and address of the owner, the date of the accident, and the name and address of the repairer shall be mailed, postage prepaid, to the insurance carrier insuring against damage or loss by collision prior to the payment of any money to the owner, his or her representative, or assignee in compensation for the damage or loss.

History of Section. P.L. 1962, ch. 40, § 1.

9-3-11. Liability where lien is not honored.

Any insurance carrier making any payment to the owner, his or her representative, or assignee as compensation for the repair of damage to the vehicle after the mailing of the notice without paying to the repairer the amount of his or her lien or so much thereof as can be satisfied out of the money due under any final judgment or compromise or settlement agreement after paying the amount of any prior liens, shall, for a period of one year from the date of payment to the owner, his or her representative, or assignee, be and remain liable to the repairer for the amount which the repairer was entitled to receive; and any such repairer may, within such period, enforce his or her lien by a suit at law against the insurance carrier making the payment.

History of Section. P.L. 1962, ch. 40, § 1.

9-3-12. Motor vehicle lessor’s lien.

Every person, firm, or corporation licensed pursuant to § 31-5-33 , who shall rent a vehicle to a lessee as a substitute vehicle for one owned by the lessee and the vehicle owned by the lessee is insured against transportation expenses, shall have a lien upon any payment due the owner of the vehicle, his or her representative, or assignee for transportation expenses and on account of the insurance, to the amount of the reasonable and necessary charges of the rental up to the date of payment of the amount; provided, however, that nothing herein contained shall be construed to give the lien herein created precedence over the lien of an attorney.

History of Section. P.L. 1973, ch. 211, § 1.

9-3-13. Notice of lessor’s lien.

The lien provided in § 9-3-12 shall be effective only if a written notice containing the name and address of the owner, the date of the accident, and the name and address of the lessor shall be mailed, postage prepaid, to the insurance carrier insuring against the loss prior to the payment of any money to the owner, his or her representative, or assignee in compensation for the damage or loss.

History of Section. P.L. 1973, ch. 211, § 1.

9-3-14. Liability where lien is not honored.

Any insurance carrier making any payment to the owner, his or her representative, or assignee as compensation for the particular loss after the mailing of the notice without paying to the lessor the amount of his or her lien or so much thereof as can be satisfied out of the money due under any final judgment or compromise or settlement agreement after paying the amount of any prior liens, shall, for a period of one year from the date of payment to the owner, his or her representative, or assignee, be and remain liable to the lessor for the amount which the lessor was entitled to receive; and any such lessor may, within such period, enforce his or her lien by a civil action against the insurance carrier making the payment.

History of Section. P.L. 1973, ch. 211, § 1.

Chapter 4 Commencement of Proceedings

9-4-1. Repealed.

History of Section. C.P.A. 1905, § 246; G.L. 1909, ch. 283, § 26; G.L. 1923, ch. 333, § 26; G.L. 1938, ch. 509, § 1; G.L. 1956, § 9-4-1 ; Repealed by P.L. 1965, ch. 55, § 12, effective January 10, 1966. For rule regulating joinder of claims and remedies in superior court see Super Ct. R. Civ. P. Rule 18. For rule regulating joinder of claims and remedies in district court, see Dist. Ct. R. Civ. P. Rule 18.

Compiler’s Notes.

Former § 9-4-1 concerned joinder of alternative counts in different forms.

9-4-2. Venue of actions involving realty.

All civil actions which concern realty, or any right, easement, or interest therein, or the possession thereof, all civil actions for breaking and entering the close of any plaintiff, and all actions in which the title to real estate may be tried and determined, shall, if brought in the superior court, be brought in the court for the county, and if brought in the district court, in the division where the land lies; and whenever the land, whether consisting of an entire tract or of two (2) or more separate tracts, lies partly in two (2) or more counties or divisions, such actions, if brought in the superior court, may be brought in the court for any county, or if brought in a district court, in any division where the land or any portion thereof lies.

History of Section. C.P.A. 1905, § 221; G.L. 1909, ch. 283, § 1; G.L. 1923, ch. 333, § 1; P.L. 1933, ch. 2051, § 1; G.L. 1938, ch. 511, § 1; G.L. 1956, § 9-4-2 ; P.L. 1965, ch. 55, § 11; P.L. 1969, ch. 239, § 7.

Cross References.

Change of venue in superior court, § 8-2-28 et seq.

Jurisdiction of superior court, § 8-2-13 et seq.

Motions and questions of pleading or practice in superior court, venue, § 9-11-8 .

Partition proceedings involving land in two or more counties, § 34-15-6 .

Venue by consent, § 8-2-27 .

Comparative Legislation.

Venue of actions involving land:

Conn. Gen. Stat. § 52-17 et seq.

Mass. Ann. Laws ch. 223, § 12.

NOTES TO DECISIONS

Change of Venue.

If an action is commenced in the proper county, its transfer to another county on change of venue or otherwise does not violate this section. Rowell v. Kaplan, 103 R.I. 60 , 235 A.2d 91, 1967 R.I. LEXIS 576 (1967).

Jurisdiction.

Trespass quare clausum fregit was properly brought in the district court of the district where the land lay, and plea of title by defendant did not deprive such court of jurisdiction. Wood v. Essex, 38 R.I. 21 , 94 A. 666, 1915 R.I. LEXIS 34 (1915).

Trespass in Cemetery.

An action to recover damages for mental anguish caused by the defendant’s excavating on a burial ground and disturbing the remains of the plaintiff’s ancestors was not an action concerning realty for breaking and entering the close of plaintiff within the meaning of this section, but was a transitory action for injury to the person, i.e., plaintiff’s feelings and sensibilities. Aborn v. Warwick Indus. Park, 103 R.I. 93 , 234 A.2d 678, 1967 R.I. LEXIS 579 (1967).

Collateral References.

Fraud in sale of real property, location of land as governing venue of action for damages for. 163 A.L.R. 1312.

Growing crops, venue of action for damage to. 103 A.L.R. 374.

Joining cause of action or prayer for personal relief as affecting venue of action relating to real property. 120 A.L.R. 790.

Leasehold as real property or an interest in real property within statute relating to venue. 104 A.L.R. 235.

License in real property as involving freehold or title or interest in real estate, within constitutional or statutory provision relating to venue. 138 A.L.R. 147.

Lien as estate or interest in land within venue statute. 2 A.L.R.2d 1261.

Mortgages securing same debt or portions thereof, upon real property in different counties, right to maintain single suit to foreclose. 110 A.L.R. 1477.

Oil and gas royalty as real property for purposes of venue. 90 A.L.R. 770; 101 A.L.R. 884; 131 A.L.R. 1371.

Partition of land, venue of suit for. 128 A.L.R. 1232.

Personal injuries, suit for damage to land as an action for, within meaning of venue statute. 134 A.L.R. 756.

Timber contract, venue of action arising out of, after delay in performance. 164 A.L.R. 465.

Validity of contractual provision limiting place or court in which action may be brought. 31 A.L.R.4th 404.

Venue of action for cutting, destruction or damage of standing timber or trees. 65 A.L.R.2d 1268.

Venue of action for rescission or cancellation of contract relating to interests in land. 77 A.L.R.2d 1014.

Venue of action for specific performance of contract pertaining to real property. 63 A.L.R.2d 456.

Venue of action for unauthorized geophysical or seismograph exploration or survey. 67 A.L.R.2d 444.

Venue of action involving real estate situated in two or more counties. 169 A.L.R. 1245.

Venue of action to set aside fraudulent conveyance of real property. 37 A.L.R.2d 568.

Venue of actions or proceedings against public officers involving real property. 48 A.L.R.2d 423.

Venue of damage action for breach of real-estate sales contract. 8 A.L.R.3d 489.

Waiver of or estoppel as to venue of action to set aside fraudulent conveyance of real property. 37 A.L.R.2d 568.

Waiver of venue of action for specific performance of contract pertaining to real property. 63 A.L.R.2d 490.

9-4-3. Venue based on residence of parties.

All other actions and suits, if brought in the superior court, shall be brought in the court for the county, or if brought in the district court, shall be brought in the division in which some one of the plaintiffs or defendants shall dwell, or in the superior court for the county or in the district court for the division in which the defendant or some one of the defendants shall be found; and if no one of the plaintiffs or defendants shall dwell in the state, the action, if brought in the superior court, may be brought in the court for any county, or if in a district court, in any division.

History of Section. C.P.A. 1905, § 222; G.L. 1909, ch. 283, § 2; G.L. 1923, ch. 333, § 2; G.L. 1938, ch. 511, § 2; G.L. 1956, § 9-4-3 ; P.L. 1969, ch. 239, § 7.

Cross References.

Divorce proceedings, venue, § 15-5-13 .

NOTES TO DECISIONS

Collateral Proceedings.

Original bill in the nature of review attacking distribution in trust proceeding in Providence county superior court was properly filed in Newport county where complainant was a nonresident and principal defendant was a resident of Newport county. Quinn v. Hall, 37 R.I. 56 , 91 A. 71, 1914 R.I. LEXIS 64 (1914).

Corporate Parties.

The fact that the treasurer of defendant corporation was “found” in a certain county could not support venue in that county since this section applies only to actions against individuals. Van Alstyne v. Short Line, 58 R.I. 286 , 192 A. 479, 1937 R.I. LEXIS 42 (1937).

Where plaintiff brought a suit against several defendants, one of which was a municipal corporation, but where said municipal corporation was never served with process and did not appear to defend the action, this statute and not § 9-4-4 determined venue. Berberian v. Westerly, 119 R.I. 593 , 381 A.2d 1039, 1978 R.I. LEXIS 587 (1978).

District Court Venue.

Under the Judiciary Act of 1893, action could be brought in any district court in the county where either party resided, regardless of whether or not the party resided in the district. Maine v. Gardner, 19 R.I. 290 , 36 A. 9, 1895 R.I. LEXIS 100 (1895).

Residence and Domicile.

An emancipated minor dwelling in Providence at the time of commencement of the action could bring action in the superior court for Providence county even though her domicile may have been in Massachusetts. Doyle v. Roy, 54 R.I. 98 , 170 A. 91, 1934 R.I. LEXIS 18 (1934).

Venue Where Defendant Found.

An action for slander can be brought in any county where the defendant can be found and served with process regardless of the fact that neither the plaintiff nor the defendant resides in that county nor did the cause of action arise there. Budlong v. Hasbrouck, 46 R.I. 397 , 129 A. 3, 1925 R.I. LEXIS 37 (1925).

Waiver.

The raising of the defense of improper venue nearly two years after the information became available to the defendant upon which to predicate a challenge was untimely and a clear violation of Dist. Ct. R. Civ. P. Rule 12(h). Therefore, the action should have been continued in the county where it was brought. Placido v. Mello, 492 A.2d 1226, 1985 R.I. LEXIS 512 (1985).

Collateral References.

Airplane passenger, venue of action for injury to. 83 A.L.R. 376; 99 A.L.R. 173.

Applicability, to annulment actions, of statutory residence requirements relating to venue in divorce actions. 32 A.L.R.2d 734.

Avoidance of release or satisfaction of judgment, suit for. 9 A.L.R.2d 553.

Declaratory judgment, venue of action to obtain. 87 A.L.R. 1245.

Different or same venue, or place of trial of proceeding or issue, and effect thereof, in respect of main action and ancillary garnishment or attachment. 139 A.L.R. 1478.

Divorce court’s jurisdiction over custody and maintenance of child, exclusion of jurisdiction of other local courts by, as affected by venue statute. 11 A.L.R. 147; 78 A.L.R. 317; 146 A.L.R. 1153.

False imprisonment, venue of civil action for. 133 A.L.R. 1122.

Place of personal representative’s appointment as venue of action against him in his official capacity. 93 A.L.R.2d 1199.

Place where corporation is doing business for purposes of state venue statute. 42 A.L.R.5th 221.

Plaintiff’s bona fide belief in cause of action against defendant whose presence in action is necessary to justify venue against another defendant as sustaining venue against latter notwithstanding failure to establish cause of action, or dismissal of action against former. 93 A.L.R. 949.

Proper county for bringing replevin, or similar possessory action. 60 A.L.R.2d 487.

Provisions of Federal Motor Carrier Act requiring designation of process agent as affecting venue. 8 A.L.R.2d 814.

Relationship between “residence” and “domicile” under venue statutes. 12 A.L.R.2d 757.

Right of defendant to file cross complaint or otherwise seek relief against co-defendant or third person in action pending in county or district which would not be the proper venue of an independent action in that regard. 100 A.L.R.2d 693.

Venue as affected by intervention of other stockholders in stockholder’s derivative action. 69 A.L.R.2d 562.

Venue of action against public officers for libel. 48 A.L.R.2d 423.

Venue of action against public officer for trespass to personalty. 48 A.L.R.2d 445.

Venue of action against unincorporated association. 145 A.L.R. 700.

Venue of action for partnership dissolution, settlement, or accounting. 33 A.L.R.2d 914.

Venue of action for slander. 70 A.L.R.2d 1340.

Venue of action or proceeding against public officer as affected by joinder of or with parties suable in different county. 48 A.L.R.2d 423.

Venue of actions involving reemployment of discharged servicemen. 29 A.L.R.2d 1340.

Venue of civil libel action against newspaper or periodical. 15 A.L.R.3d 1249.

Venue of claims for contribution or indemnity arising from payment of judgment or claim in motor vehicle accident case. 84 A.L.R.2d 994.

Venue of suit to enjoin nuisance. 7 A.L.R.2d 481.

Venue of wrongful death action. 58 A.L.R.5th 535.

Venue under legislation authorizing sale of charitable trust property. 40 A.L.R.2d 556.

What amounts to a personal injury within venue statute. 134 A.L.R. 751.

What is an action for damages to personal property within venue statute. 29 A.L.R.2d 1270.

When action deemed to be for recovery of personal property within venue statute. 126 A.L.R. 1190.

9-4-4. Venue in personal or transitory actions involving corporations.

Personal or transitory actions and suits brought by or against corporations, if brought in the superior court, shall be brought in the court for the county, and if brought in a district court, shall be brought in the division in which the other party or some one of the other parties dwell, or in the court for the county or in the district court for the division in which the defendant or some one of the defendants shall be found, or in which the corporation is located by its charter, or if not located by its charter, in which the annual meetings of the corporation are required to be, or if not required to be, are actually held.

History of Section. C.P.A. 1905, § 223; G.L. 1909, ch. 283, § 3; G.L. 1923, ch. 333, § 3; G.L. 1938, ch. 511, § 3; G.L. 1956, § 9-4-4 ; P.L. 1969, ch. 239, § 7.

Comparative Legislation.

Venue of transitory actions:

Mass. Ann. Laws, ch. 223, § 1.

NOTES TO DECISIONS

Residence of Plaintiff.

Where action is brought by an individual against a corporation alone and the plaintiff dwells in the county where the corporation is located by its charter, then the only proper venue is in that county. Van Alstyne v. Short Line, 58 R.I. 286 , 192 A. 479, 1937 R.I. LEXIS 42 (1937).

The fact that the treasurer of defendant corporation was “found” in a certain county could not support venue in that county since actions against corporations are governed by this section. Van Alstyne v. Short Line, 58 R.I. 286 , 192 A. 479, 1937 R.I. LEXIS 42 (1937).

A foreign corporation qualified to do business in the state should have brought suit in the county where the defendant was found rather than in the county where the corporation had its principal place of business in the state. Sears, Roebuck & Co. v. Saunders, 99 R.I. 469 , 208 A.2d 526, 1965 R.I. LEXIS 465 (1965).

This statute clearly permits a plaintiff to file suit against a corporation in the county wherein the plaintiff resides. Berberian v. Westerly, 119 R.I. 593 , 381 A.2d 1039, 1978 R.I. LEXIS 587 (1978).

Collateral References.

Branch banks, actions against. 50 A.L.R. 1355; 136 A.L.R. 471.

Designation of place of business in corporation papers, conclusiveness of, as regards venue. 175 A.L.R. 1092.

Foreign corporation, what constitutes residence of, in a county or judicial district within state venue statute. 129 A.L.R. 1286.

Libel in newspaper, venue of action for, where defendant is a corporation. 15 A.L.R.3d 1249.

National bank as subject to suit outside county of its residence. 86 A.L.R. 47.

Right to lay venue of action against municipality in county other than that in which it is situated. 93 A.L.R. 500.

Venue of action against corporation for slander. 70 A.L.R.2d 1340.

9-4-5. Venue of actions between nonresident parties.

If no one of the plaintiffs or defendants dwell within the state, and a corporation established out of the state be a party, personal or transitory actions or suits by or against it may, if brought in the superior court, be brought in the court for any county, or if in the district court, in any division.

History of Section. C.P.A. 1905, § 224; G.L. 1909, ch. 283, § 4; G.L. 1923, ch. 333, § 4; G.L. 1938, ch. 511, § 4; G.L. 1956, § 9-4-5 ; P.L. 1969, ch. 239, § 7.

Comparative Legislation.

Actions against nonresidents:

Conn. Gen. Stat. §§ 52-18, 52-21.

Mass. Ann. Laws, ch. 223, §§ 1, 2.

NOTES TO DECISIONS

Foreign Corporations.

This section does not confer jurisdiction to try a transitory cause of action arising outside the state against a foreign corporation. Hughes v. Johnson Educator Food Co., 14 F. Supp. 999, 1936 U.S. Dist. LEXIS 1427 (D.R.I. 1936). (But see Kurland Auto Leasing case below.)

Venue was conferred on the superior court to try a transitory cause of action arising outside the state against a foreign corporation where defendant acknowledged that it was doing business in the state at the time the action was brought against it. Kurland Auto Leasing v. I. S. K. of Massachusetts, 111 R.I. 730 , 306 A.2d 839, 1973 R.I. LEXIS 1270 (1973).

Forum Non Conveniens.

Under the doctrine of forum non conveniens, when an alternative forum has jurisdiction to hear a case, and when trial in the chosen forum would establish oppressiveness and vexation to a defendant out of all proportion to plaintiff’s convenience, or when the chosen forum is inappropriate because of considerations affecting the court’s own administrative and legal problems, the court may, in the exercise of its sound discretion, dismiss the case on forum non conveniens grounds, even if jurisdiction and proper venue are established. Kedy v. A.W. Chesterton Co., 946 A.2d 1171, 2008 R.I. LEXIS 68 (2008).

The forum non conveniens inquiry consists of a two-prong analysis. First, the court must decide whether an alternative forum exists that is both available and adequate to resolve the disputed legal issues. Second, the court must determine the inconvenience of continuing in the plaintiff’s chosen forum by weighing private- and public-interest factors. The defendant carries the burden of persuasion at each stage of the forum non conveniens . Kedy v. A.W. Chesterton Co., 946 A.2d 1171, 2008 R.I. LEXIS 68 (2008).

Although jurisdiction and venue existed in Rhode Island as to asbestos litigation cases that were brought by Canadian residents against corporations that did business in Rhode Island, dismissal of the cases was proper because the private-interest and public-interest factors favored the dismissal of the cases under the doctrine of forum non conveniens in spite of the deference to which the alleged victims’ choice of forum was entitled. Kedy v. A.W. Chesterton Co., 946 A.2d 1171, 2008 R.I. LEXIS 68 (2008).

Collateral References.

Venue of action against nonresident motorist served constructively under statute. 38 A.L.R.2d 1198.

9-4-6. Dismissal for improper venue — Transfer.

Except as otherwise provided herein, all actions and suits brought contrary to the provisions of § 9-4-2 shall be dismissed, and any action contrary to §§ 9-4-3 9-4-5 , may be dismissed. In lieu of dismissal, any civil action brought in the wrong county, if brought in the superior court, or in the wrong division, if brought in the district court, may, in the discretion of the court, be transferred to a proper county or division.

History of Section. C.P.A. 1905, § 225; G.L. 1909, ch. 283, § 5; G.L. 1923, ch. 333, § 5; G.L. 1938, ch. 511, § 5; G.L. 1956, § 9-4-6 ; P.L. 1965, ch. 55, § 11; P.L. 1969, ch. 239, § 7.

NOTES TO DECISIONS

Applicability.

An action to recover damages for mental anguish caused by the defendant’s excavating on a burial ground and disturbing the remains of the plaintiff’s ancestors was not an action concerning realty but one for personal injury, i.e., injury to plaintiff’s feelings and sensibilities, and not subject to abatement because not brought in the county where the burial ground was located. Aborn v. Warwick Indus. Park, 103 R.I. 93 , 234 A.2d 678, 1967 R.I. LEXIS 579 (1967).

This section is not applicable to an action seeking judicial review of an administrative agency’s decision. East Greenwich Yacht Club v. Coastal Resources Management Council, 118 R.I. 559 , 376 A.2d 682, 1977 R.I. LEXIS 1498 (1977).

Transfer.

This section does not apply to an action brought in the proper county and transferred to another county by stipulation of the parties. Rowell v. Kaplan, 103 R.I. 60 , 235 A.2d 91, 1967 R.I. LEXIS 576 (1967).

In order to vest a trial court with discretion to transfer, the action must have been brought improperly. Berberian v. Westerly, 119 R.I. 593 , 381 A.2d 1039, 1978 R.I. LEXIS 587 (1978).

9-4-7. Filing of papers and payment of entry fee.

No proceedings, original or appellate, shall be deemed to be entered until the necessary papers are properly filed and the entry fee, if any is required, is paid.

History of Section. C.P.A. 1905, § 259; G.L. 1909, ch. 285, § 2; G.L. 1923, ch. 335, § 2; G.L. 1938, ch. 513, § 2; G.L. 1956, § 9-4-7 .

Cross References.

Commencement of civil action, R.C.P. 3.

Fees in district court, § 9-29-1 .

Small claims procedure, commencement of actions, § 10-16-4 .

Surety for costs given by nonresident, § 9-22-1 .

NOTES TO DECISIONS

Amendment of Summons.

Superior court for county to which writ of summons was not returnable had no jurisdiction to allow amendment of writ making it returnable to that court. Sheldon v. Westcott, 67 R.I. 480 , 25 A.2d 219, 1942 R.I. LEXIS 15 (1942).

Collateral References.

Date when suit begun, admissibility of pleading for purpose of showing. 14 A.L.R. 109.

9-4-8. Correction of defective entries.

Except as otherwise provided by law, whenever any civil action (except in a district court) or whenever any appeal shall not be entered according to law, the court to which the action or appeal is returnable may, in case of accident, mistake, unforeseen cause, or excusable neglect, in its discretion, allow the action or appeal to be entered with or without terms; provided, that if the action or appeal is not entered according to law, in the first instance, all attachments and arrests made therein shall be thereby vacated.

History of Section. C.P.A. 1905, § 258; G.L. 1909, ch. 285, § 1; G.L. 1923, ch. 335, § 1; G.L. 1938, ch. 513, § 1; G.L. 1956, § 9-4-8 ; P.L. 1965, ch. 55, § 11; P.L. 1997, ch. 326, § 17.

NOTES TO DECISIONS

Court Discretion.

Where the original failure to enter a writ was due to accident or mistake, but the continued failure was due to negligence of counsel, an order of the trial court denying relief under this section would not be reversed. National Casket Co. v. Montgomery, 52 R.I. 158 , 158 A. 723, 1932 R.I. LEXIS 16 (1932).

If plaintiff’s failure to comply with the provisions of the statute resulted solely from the attorney’s negligence it would be an abuse of discretion for the trial justice to grant relief under this section. Di Mauro v. Samson, 88 R.I. 222 , 145 A.2d 761, 1958 R.I. LEXIS 115 (1958).

Where there was a mixture of negligence with a mistake of fact on the part of counsel in failing to file papers in time and the trial justice, in the exercise of his discretion, concluded that such negligence did not predominate in producing the failure Supreme Court would not say that such decision was wrong. Di Mauro v. Samson, 88 R.I. 222 , 145 A.2d 761, 1958 R.I. LEXIS 115 (1958).

Notice of intention to file a bill of exceptions out of time would avail the plaintiff nothing in view of the meager record before the court, for to allow him to merely file a notice of intention out of time, which is all plaintiff prayed for, would still leave him without an exception to the decision. Monti v. Providence Journal Co., 96 R.I. 175 , 190 A.2d 482, 1963 R.I. LEXIS 75 (1963).

Trial justice did not abuse his discretion in denying petition filed pursuant to this section where there was no transcript of any testimony and apparently none was taken in the superior court to show on what other ground, if any, plaintiff relied to prove “accident, mistake or unforeseen cause” prescribed in the statute besides the showing made by the joint affidavit of counsel of lack of notice of the entry of the court’s rescript. Monti v. Providence Journal Co., 96 R.I. 175 , 190 A.2d 482, 1963 R.I. LEXIS 75 (1963).

Equity Cases.

This section was not applicable to petition in supreme court to claim an appeal out of time in a suit in equity. Leary v. Leary, 87 R.I. 189 , 139 A.2d 472, 1958 R.I. LEXIS 39 (1958).

Probate Court Appeals.

An appeal from a probate court is governed by G.L. 1909, ch. 311, § 1 (§ 33-23-1 ) and not by this section. Fish v. Field, 40 R.I. 180 , 100 A. 306, 1917 R.I. LEXIS 19 (1917).

9-4-9. Lis pendens.

  1. No proceeding in court, hereafter taken, whether by filing bill, petition, declaration, or other complaint, or by rule of court or otherwise, and no final order, decree, or judgment, concerning the title to any real estate, in this state, or to any interest or easement therein, shall affect the title (except as to parties thereto and their heirs and devisees, and those having actual notice thereof) as to any rights acquired before notice of the filing, or entry of the notice shall be recorded in the records of land evidence in the town or city where the real estate is situated; the notice to be copied in a book duly indexed and kept for that purpose. The notice shall briefly state the names of all the parties, the court wherein filed, the date of filing, and the substance of the bill, petition, declaration or other complaint, rule, order, decree, or judgment, and a description of the real estate thereby affected, so as far as may be necessary to warn any person subsequently dealing with the title to the land.
  2. Any person causing such notice to be recorded shall, within seven (7) days of the recording, cause a copy of said notice to be mailed, regular mail, postage prepaid to all parties named in the bill, petition, declaration or other complaint, rule, order, decree, or judgment at their last known address. Failure to comply with this provision shall not invalidate the lis pendens.

History of Section. C.P.A. 1905, § 439; G.L. 1909, ch. 294, § 13; G.L. 1923, ch. 344, § 13; G.L. 1938, ch. 439, § 1; P.L. 1940, ch. 942, § 1; G.L. 1956, § 9-4-9 ; P.L. 1988, ch. 85, § 1.

Cross References.

Eligibility for recording, § 34-13-1 .

Comparative Legislation.

Lis pendens:

Conn. Gen. Stat. § 52-325.

Mass. Ann. Laws, ch. 184, §§ 15, 16.

NOTES TO DECISIONS

Constitutionality.

Lis pendens is not a lien but merely puts all prospective purchasers on notice that there is a suit pending involving an issue of title to certain real property, and therefore due process of law does not mandate notice and an opportunity to be heard before the filing of a notice of lis pendens under this section. George v. Oakhurst Realty, 414 A.2d 471, 1980 R.I. LEXIS 1557 (1980).

This section is not unconstitutional as a violation of the due process clauses of the United States and Rhode Island Constitutions since there is no significant taking of property and the extent of the state’s involvement in the filing of a notice of lis pendens is minimal. Darr v. Muratore, 143 B.R. 973, 1992 U.S. Dist. LEXIS 12794 (D.R.I. 1992).

Even if the filing of a notice of lis pendens constituted a taking with sufficient state involvement, the Rhode Island lis pendens procedure provides adequate constitutional safeguards since this section specifies that a plaintiff shall give notice to all named parties within seven days after recording a notice of lis pendens, and a defendant may subsequently file a motion to quash an improperly filed lis pendens; there is no constitutional requirement that the landowner be given a hearing before the notice of lis pendens is filed. Darr v. Muratore, 143 B.R. 973, 1992 U.S. Dist. LEXIS 12794 (D.R.I. 1992).

Action Not Concerning Title.

A notice filed by plaintiff which stated that in event of a favorable decree on a bill for accounting a levy would be made on certain real estate belonging to defendants was null and void since bill did not concern the title to real estate. Campbell v. Metcalf, 20 R.I. 352 , 39 A. 190, 1898 R.I. LEXIS 53 (1898).

The plaintiff’s act of filing a lis pendens was done maliciously since it was filed as a calculated attempt to coerce the defendant into paying her the money she believed past due and owing to her, rather than a legitimate endeavor to preserve her claimed ownership interest in the property in question. A lis pendens may not be used as a substitute for an attachment to collect an alleged indebtedness. Montecalvo v. Mandarelli, 682 A.2d 918, 1996 R.I. LEXIS 219 (1996).

Equitable Lien.

A cause of action to enforce an equitable lien is an action affecting title to or an interest in real property, sufficient to support the filing of a notice of lis pendens. Darr v. Muratore, 143 B.R. 973, 1992 U.S. Dist. LEXIS 12794 (D.R.I. 1992).

Personal Property.

Wife cannot set aside a sale of personal property made by the husband while he was under injunction not to convey such property. Picerne v. Redd, 72 R.I. 4 , 47 A.2d 906, 1946 R.I. LEXIS 33 (1946).

Purchasers Pendente Lite.

Title of purchasers of land pending suit concerning the land is not affected by the proceeding if no lis pendens is filed, unless the purchasers have actual notice of the proceeding. Sprague v. Stevens, 37 R.I. 1 , 91 A. 43, 1914 R.I. LEXIS 61 (1914).

Vendees.

Since an executory purchase-and-sale agreement vests in the vendee thereof equitable title to the land involved and a third party who purchases such land with notice of the vendee’s interest therein takes title subject to such interest and may in a proper case be directed to convey the land to the aggrieved vendee, such a vendee could properly file a notice of lis pendens subsequent to the third party’s purchase of the land. George v. Oakhurst Realty, 414 A.2d 471, 1980 R.I. LEXIS 1557 (1980).

Collateral References.

Appeal, writ of error, or motion for new trial, protection during time allowed for. 10 A.L.R. 415.

Bill of review, decree on, reversing prior decree as affecting purchaser or mortgagee of real property in the interval between the original decree and the filing of the bill of review. 150 A.L.R. 676.

Doctrine of lis pendens as applied to one who takes deed pending action, pursuant to executory contract entered into before action commenced. 93 A.L.R. 404.

Fraudulent conveyance, doctrine of lis pendens as applicable to actions to avoid or prevent. 74 A.L.R. 690.

Lis pendens as affecting property in county or district other than that in which action is pending. 71 A.L.R. 1085.

Lis pendens as applicable to suit for divorce or separation. 166 A.L.R. 406.

Mortgage which has been extended by subsequent agreement to cover additional indebtedness, filing of bill for foreclosure of, with lis pendens, as notice to subsequent purchasers. 76 A.L.R. 589.

Necessity of filing notice of lis pendens in suit to foreclose mortgage or deed of trust. 138 A.L.R. 1454.

Notice, statute requiring filing of formal notice of lis pendens in certain classes of cases as affecting common law doctrine of lis pendens in other cases. 10 A.L.R. 306.

Original notice of lis pendens as effective upon renewal of litigation within permissive period after dismissal, reversal, or nonsuit. 164 A.L.R. 515.

Partition suit, right of one in whose favor mortgage or other lien is created pending, as against purchaser at partition sale. 93 A.L.R. 1284.

Stage of action at which effective notice of lis pendens may be filed. 130 A.L.R. 943.

Title of stranger to litigation who purchased at judicial sale before appeal or pending appeal without supersedeas as affected by reversal of decree directing sale. 155 A.L.R. 1252.

Will contest, necessity of filing notice of lis pendens in. 159 A.L.R. 386.

Chapter 5 Writs, Summons and Process

9-5-1. Writs in name of state — Seal — Signature by clerk or justice.

Writs issuing from any court shall issue in the name of the state of Rhode Island, shall be under the seal of the court from which they issue, and shall be signed by the clerk or by one of the justices thereof.

History of Section. C.P.A. 1905, § 498; G.L. 1909, ch. 299, § 1; G.L. 1923, ch. 349, § 1; G.L. 1938, ch. 514, § 1; G.L. 1956, § 9-5-1 ; P.L. 2021, ch. 77, § 5, effective June 23, 2021; P.L. 2021, ch. 78, § 5, effective June 23, 2021.

Compiler’s Notes.

P.L. 2021, ch. 77, § 5, and P.L. 2021, ch. 78, § 5 enacted identical amendments to this section.

Rules of Court.

For form of summons, see Super. Ct. R. Civ. P. Rule 4(a), Form 1.

For form of summons in district court, see District Court Rule 4(a), Form 1.

Cross References.

Forgery or counterfeiting, penalty, § 11-17-1 .

Stealing of writ as larceny, § 11-41-1 .

Unauthorized use of writs, § 11-27-7 .

NOTES TO DECISIONS

Improper Form.

Petitioner was allowed to amend clerk’s signature on writ where petitioner’s attorney as officer of the court had obtained supply of blank writs with former clerk’s signature but served writ in this case after new clerk had gone into office. Burger v. Brindle, 64 R.I. 86 , 10 A.2d 353, 1940 R.I. LEXIS 10 (1940).

Collateral References.

Seal as necessary to validity of execution. 28 A.L.R. 936.

9-5-2. Counties in which superior court writs made and returnable.

Any original writ or writ of mesne process from the superior court for any county may be sealed and signed by the clerk of the court for any county and be made returnable in any other county where the court may sit.

History of Section. C.P.A. 1905, § 499; G.L. 1909, ch. 299, § 2; G.L. 1923, ch. 349, § 2; G.L. 1938, ch. 514, § 2; P.L. 1942, ch. 1143, § 1; G.L. 1956, § 9-5-2 .

9-5-3. Facsimile signature of clerk or seal of the court.

A facsimile of the signature of the clerk of the superior court for each of the counties of Providence and Bristol, Newport, Washington, and Kent, or the district court for each division, imprinted by him or her, with the seal of the court affixed or a facsimile of the court seal, upon any civil process, original, supplementary, or final, or upon any copy of or accompanying the process, or upon any subpoena, or upon any other paper requiring the signature of the clerk and the seal of the court issuing out of the court of which he or she is clerk, except complaints and warrants, mittimuses, capiases, remands, and writs of habeas corpus, shall have the same validity as his or her written signature.

History of Section. P.L. 1906, ch. 1315, § 1; G.L. 1909, ch. 299, § 3; P.L. 1918, ch. 1611, § 1; P.L. 1921, ch. 2017, § 1; G.L. 1923, ch. 349, § 3; G.L. 1938, ch. 514, § 3; G.L. 1956, § 9-5-3 ; P.L. 1969, ch. 239, § 8; P.L. 2014, ch. 247, § 1; P.L. 2014, ch. 315, § 1.

Compiler’s Notes.

P.L. 2014, ch. 247, § 1, and P.L. 2014, ch. 315, § 1 enacted identical amendments to this section.

Rules of Court.

For form of summons, see Civil Procedure Rule 4(a), Form 1.

Collateral References.

Omission of signature of issuing officer on civil process or summons as affecting jurisdiction of the person. 37 A.L.R.2d 928.

9-5-4. Repealed.

History of Section. C.P.A. 1905, § 500; G.L. 1909, ch. 299, § 4; G.L. 1923, ch. 349, § 4; G.L. 1938, ch. 514, § 4; G.L. 1956, § 9-5-4 ; Repealed by P.L. 1965, ch. 55, § 14, effective January 10, 1966.

Compiler’s Notes.

Former § 9-5-4 concerned writs as writs of summons.

9-5-5. Form of writs from supreme and superior courts.

All writs issuing from the supreme or superior court shall be in such form as the court shall prescribe, except if express provision is made by statute.

History of Section. C.P.A. 1905, § 501; G.L. 1909, ch. 299, § 5; G.L. 1923, ch. 349, § 5; G.L. 1938, ch. 514, § 5; G.L. 1956, § 9-5-5 .

Rules of Court.

For form of summons in superior court, see Super. Ct. R. Civ. P. Rule 4(a), Form 1.

For form of summons in district court, see District Court Rule 4(a), Form 1.

Cross References.

Formal defects to be disregarded, § 9-6-3 .

Juvenile court summons, § 14-1-16 et seq.

Writ of estrepement, § 34-14-5 et seq.

9-5-6. Writs and process operating throughout state — Officers to whom directed.

All writs, executions, and process shall run throughout the state and shall be directed for service to the division of sheriffs, or to a certified constable, but if any deputy sheriff is a party to the action or suit, the process shall be directed to the town sergeant or a certified constable and may be served by any one of them not a party to the action or suit.

History of Section. C.P.A. 1905, § 502; G.L. 1909, ch. 299, § 6; G.L. 1923, ch. 349, § 6; P.L. 1930, ch. 1618, § 1; P.L. 1932, ch. 1900, § 1; G.L. 1938, ch. 514, § 6; G.L. 1956, § 9-5-6 ; P.L. 1965, ch. 55, § 13; P.L. 2012, ch. 324, § 16; P.L. 2015, ch. 260, § 8; P.L. 2015, ch. 275, § 8.

Compiler’s Notes.

P.L. 2015, ch. 260, § 8, and P.L. 2015, ch. 275, § 8 enacted identical amendments to this section.

Effective Dates.

P.L. 2015, ch. 260, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

P.L. 2015, ch. 275, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

Cross References.

Disqualification of town sergeant or constable from serving process, § 45-16-11 .

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

Liability of town sergeant or constable for neglect in serving process, § 45-16-5 .

Service and execution by sheriff, § 42-29-22 et seq.

Service by town sergeants and constables, § 45-16-4 .

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

NOTES TO DECISIONS

Deputy Sheriff as Party.

A writ in which the deputy sheriff is a party may be validly served by another deputy sheriff. Slocomb v. Powers, 10 R.I. 255 , 1872 R.I. LEXIS 14 (1872).

Officer as Agent of Plaintiff.

The fact that the officer was an agent of the plaintiff for other purposes did not make him incompetent to serve the writ. Carroll v. Sheehan, 12 R.I. 218 , 1878 R.I. LEXIS 67 (1878).

Collateral References.

Deputy or assistant, liability of officer or his bond for neglect of, to make return of process. 1 A.L.R. 240; 102 A.L.R. 174; 116 A.L.R. 1064.

Personal liability of officer as affected by his failure to file return of his proceedings after seizing property under writ or process. 98 A.L.R. 692.

9-5-7. Direction of writs for arrest or execution against the body.

All writs whatsoever commanding the arrest of a defendant, or executions running against the body of a defendant, shall be directed for service to the division of sheriffs or to a certified constable authorized pursuant to § 9-5-10.1 , or if the writ is to be served in the town of New Shoreham, it may be directed to the town sergeant of the town, subject to the provisions of § 9-5-8 , and no writ of arrest shall be served by any other officer.

History of Section. P.L. 1926, ch. 784, § 1; G.L. 1938, ch. 515, § 8; G.L. 1956, § 9-5-7 ; P.L. 2012, ch. 324, § 16; P.L. 2015, ch. 260, § 8; P.L. 2015, ch. 275, § 8.

Compiler’s Notes.

P.L. 2015, ch. 260, § 8, and P.L. 2015, ch. 275, § 8 enacted identical amendments to this section.

Effective Dates.

P.L. 2015, ch. 260, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

P.L. 2015, ch. 275, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

9-5-8. Power of New Shoreham town sergeant — Bond.

The town sergeant of the town of New Shoreham is hereby authorized and empowered to serve any writ and civil or criminal process in the town of New Shoreham and the waters adjacent thereto within the jurisdiction of the state, the ad damnum of which does not exceed one thousand dollars ($1,000), as fully and effectually as a member of the division of sheriffs; provided, that the town sergeant of New Shoreham give bond, with two (2) sufficient sureties, to the general treasurer in the sum of two thousand dollars ($2,000). In case any person is injured by the breach of the bond, he or she may sue upon the bond in like manner as he or she might do upon a sheriff’s bond in a like case under the provisions of §§ 42-29-12 and 42-29-13 .

History of Section. P.L. 1897, ch. 499, §§ 1, 2; C.P.A. 1905, § 1206; G.L. 1909, ch. 300, §§ 2, 3; G.L. 1923, ch. 350, §§ 2, 3; G.L. 1938, ch. 515, §§ 2, 3; G.L. 1956, § 9-5-8 ; P.L. 2012, ch. 324, § 16.

9-5-9. Warrants for commitment to institutions.

Any warrant or mittimus issued from any district court committing any person to the institute of mental health shall be directed to and executed by duly authorized agents of the department of human services, who shall make return thereon, the provisions of any other law to the contrary notwithstanding.

History of Section. G.L., ch. 349, § 6; P.L. 1930, ch. 1618, § 1; P.L. 1932, ch. 1900, § 1; G.L. 1938, ch. 514, § 6; impl. am. P.L. 1939, ch. 660, § 80; G.L. 1956, § 9-5-9 ; P.L. 2012, ch. 324, § 16.

9-5-10. Direction and return of district courts writs and summonses.

Writs and summonses issued by a district court shall be made returnable to the court at the place and on the day and hour provided by law, to be named in the writs and summonses, and shall, except as otherwise specifically provided, be directed to the division of sheriffs, or to the town sergeants, or to a certified constable authorized pursuant to § 9-5-10.1 . In case any person upon whom it is necessary to make service of any writ, summons, or execution issued by a district court is, or has estate, in any other county than the one in which the action is brought, the writ, summons, or execution may also be directed to and served by the like officer of such other county.

History of Section. C.P.A. 1905, § 503; G.L. 1909, ch. 299, § 7; G.L. 1923, ch. 349, § 7; G.L. 1938, ch. 514, § 7; G.L. 1956, § 9-5-10 ; P.L. 1964, ch. 221, § 1; P.L. 1965, ch. 55, § 13; P.L. 1966, ch. 1, § 6; P.L. 1967, ch. 118, § 1; P.L. 1969, ch. 239, § 8; P.L. 1971, ch. 183, § 3; P.L. 1989, ch. 282, § 1; P.L. 2012, ch. 324, § 16; P.L. 2015, ch. 260, § 8; P.L. 2015, ch. 275, § 8.

Compiler’s Notes.

P.L. 2015, ch. 260, § 8, and P.L. 2015, ch. 275, § 8 enacted identical amendments to this section.

Effective Dates.

P.L. 2015, ch. 260, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

P.L. 2015, ch. 275, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

Rules of Court.

For service of process in district court, see Dist. Ct. R. Civ. P. Rule 4.

NOTES TO DECISIONS

Constable Appointed Elsewhere.

A constable residing and appointed outside of the city of Providence could serve a writ issued by a district court outside of Providence, even though both parties resided in Providence and the property attached was in Providence. Goldrick v. Bennett, 20 R.I. 581 , 40 A. 761, 1898 R.I. LEXIS 132 (1898).

Increase of Ad Damnum.

Where the ad damnum in the writ was $100 and service was made by a constable, the district court could raise the ad damnum and permit a decision against defendants for a greater amount. Quaglieri v. Venditti, 40 R.I. 537 , 102 A. 177, 1917 R.I. LEXIS 58 (1917).

Jurisdictional Issue.

Where constable was without authority to serve writs and summonses, the district court did not acquire jurisdiction. Barthlein v. Ellis, 112 R.I. 646 , 314 A.2d 426, 1974 R.I. LEXIS 1482 (1974).

Collateral References.

Deputy or assistant, liability of officer or his bond for neglect of, to make return of process. 1 A.L.R. 240; 102 A.L.R. 174; 116 A.L.R. 1064.

Personal liability of officer as affected by his failure to file return of his proceedings after seizing property under writ or process. 98 A.L.R. 692.

9-5-10.1. Certification of constables.

    1. A person at least twenty-one (21) years of age who complies with the statute and the requirements set forth in any regulations promulgated by the department of business regulation may file an application with the department requesting that the applicant be certified as a constable. Once issued by the department, the certification shall be effective for a period of two (2) years or until the approval is withdrawn by the department. A certified constable shall be entitled to serve or execute writs and process in such capacity for any court of the state, anywhere in the state, subject to any terms and limitations as set forth by the court, and in such number as determined by the chief judge of the district court.
    2. A person to be certified as a constable shall provide documentation and evidence satisfactory to the department of business regulations that the person possesses the specified minimum qualifications to include:
      1. Sixty (60) hours of earned credit from an accredited college, university, or institution; or
      2. Four (4) years of honorable military service; or
      3. Twenty (20) years of honorable service with a local, state, or federal law enforcement agency; and
      4. United State citizenship; and
      5. Possession of a valid motor vehicle operator’s license; and
      6. Successful completion of unlawful drug use screening; and
      7. Successful completion of psychological testing approved by the department of business regulation.
  1. Certification process.
    1. Application.
      1. Any person seeking certification pursuant to this section shall complete an application and submit it to the department of business regulation in the form designated by the department for such applications.
      2. The application shall include information determined by the department to be relevant to licensure and shall include a national criminal background check.
    2. Referral to certified constables’ board.  Once the applicant has provided a completed application, the department shall refer the applicant to the certified constables’ board by providing a copy of the application to the board and to the chief judge of the district court.
    3. Training.
      1. Following review of the application, the board shall determine whether the applicant should be recommended for training by the board to be conducted by a volunteer training constable. If the board determines that training is appropriate, the applicant shall be assigned to a training constable who shall be a constable in good standing for a minimum of ten (10) years and who is approved by the chief judge of the district court to train prospective constables.
      2. Training shall consist of a minimum of ninety (90) hours to be completed no sooner than ninety (90) days from the date of the referral by the board. The department may waive the training requirement of this section for an applicant who has graduated from a certified police or law enforcement academy and who has a minimum of twenty (20) years of honorable service as a police or law enforcement officer.
      3. Within thirty (30) days from the conclusion of training, a written report shall be submitted by the training constable to the board with a copy to the department that reflects the dates and times of training and comments on the aptitude of the trainee.
      4. If the board concludes that training is not appropriate or if the report of the training constable concludes that the applicant does not have the aptitude to perform the duties of a constable, the board shall so inform the department which shall deny the application on that basis.
    4. Oral and written tests.
      1. Upon the successful completion of the training period and recommendation from the training constable, within ninety (90) days the applicant shall complete an oral examination on the legal and practical aspects of certified constables’ duties that shall be created and administered by the board.
      2. Upon the successful completion of the oral examination, within sixty (60) days the applicant must complete a written test created by the board and approved by the chief judge of the district court that measures the applicant’s knowledge of state law and court procedure.
      3. If the board concludes that the applicant has not successfully passed either the oral or written test, the board shall so inform the department which shall deny the application on that basis.
    5. Final review.  The department shall review the application, training record, test scores, and such other information or documentation as required and shall determine whether the applicant shall be approved for certification and the person authorized to serve process in the state.
  2. Any person certified as a constable on the effective date of this act shall continue to be certified without complying with the certification requirements prescribed by this act.

History of Section. P.L. 2015, ch. 260, § 9; P.L. 2015, ch. 275, § 9; P.L. 2021, ch. 221, § 1, effective July 6, 2021; P.L. 2021, ch. 222, § 1, effective July 8, 2021.

Compiler’s Notes.

P.L. 2015, ch. 260, § 9, and P.L. 2015, ch. 275, § 9 enacted identical versions of this section.

The references to “this act” in subsection (c) of this section were added as part of the amendments to this section by P.L. 2021, ch. 221 and P.L. 2021, ch. 222.

P.L. 2021, ch. 221, § 1, and P.L. 2021, ch. 222, § 1 enacted identical amendments to this section.

Effective Dates.

P.L. 2015, ch. 260, § 41, provides that this section takes effect on September 1, 2015.

P.L. 2015, ch. 275, § 41, provides that this section takes effect on September 1, 2015.

Applicability.

P.L. 2021, ch. 221, § 2 provides: “This act shall take effect upon passage [July 6, 2021] and any person certified as a constable on the effective date of this act shall continue to be certified without complying with the certification requirements prescribed by this act.”

P.L. 2021, ch. 222, § 2 provides: “This act shall take effect upon passage [July 8, 2021] and any person certified as a constable on the effective date of this act shall continue to be certified without complying with the certification requirements prescribed by this act.”

9-5-10.2. Posting of bond by certified constables.

Upon filing of the application and training required by § 9-5-10.1 , an applicant shall submit an application fee in the amount of four hundred dollars ($400) and deposit a bond with sufficient sureties in the sum of ten thousand dollars ($10,000) for the faithful performance of the duties of his or her office conditioned to protect members of the public and persons contracting with the certified constable against any damage arising from any actionable misconduct on the part of the applicant while serving as a certified constable. The terms of the bond shall include notification by the surety issuing the bond to the department if the bond is revoked, cancelled, or otherwise not in effect. Failure to keep the bond in effect shall be grounds for revocation of the certification to act as a constable.

History of Section. P.L. 2015, ch. 260, § 9; P.L. 2015, ch. 275, § 9.

Compiler’s Notes.

P.L. 2015, ch. 260, § 9, and P.L. 2015, ch. 275, § 9 enacted identical versions of this section.

Effective Dates.

P.L. 2015, ch. 260, § 41, provides that this section takes effect on September 1, 2015.

P.L. 2015, ch. 275, § 41, provides that this section takes effect on September 1, 2015.

9-5-10.3. Powers and authority of certified constables.

  1. No certified constable shall display any badge, emblem, or certification in the course of his or her duties except that which is issued or authorized by the department of business regulation, nor shall any certified constable misrepresent himself or herself as a law enforcement officer or peace officer.
  2. Certified constables shall have no power or authority other than to serve process and execute writs as provided by this section.
  3. The powers and authority of any constable who is presently approved to serve process by the district court shall continue in full force and effect until such time that his or her application for certification is approved in accordance with the certification process set forth in § 9-5-10.5 , but in no event shall such period exceed two (2) years.
  4. No certified constable, while serving or executing any process or writ issued by or returnable to the court, is liable in any civil action to respond in damages as a result of his or her acts of commission or omission arising directly out of his or her negligent serving or executing the process or writ except as provided in § 9-5-10.5 . In the event a civil action is brought against a certified constable as the result of the performance of his or her duties, the constable is entitled to recover all costs and attorney’s fees incurred by the certified constable incidental to the civil action.

History of Section. P.L. 2015, ch. 260, § 9; P.L. 2015, ch. 275, § 9.

Compiler’s Notes.

P.L. 2015, ch. 260, § 9, and P.L. 2015, ch. 275, § 9 enacted identical versions of this section.

Effective Dates.

P.L. 2015, ch. 260, § 41, provides that this section takes effect on September 1, 2015.

P.L. 2015, ch. 275, § 41, provides that this section takes effect on September 1, 2015.

9-5-10.4. Renewal of certification of certified constables.

A certified constable shall be required to renew his or her certification every two (2) years. Any certified constable failing to renew his or her certification shall no longer be approved to serve as a certified constable. At the time of renewal, the certified constable shall submit a renewal application fee of four hundred dollars ($400) and provide evidence that he or she has completed ten (10) hours of approved continuing education in the areas of service of process within the prior twenty-four-month (24) period, and such courses shall be approved by the Independent Constables Association, Inc. and/or the Rhode Island Constables, Inc., along with proof of sufficient bond, a current criminal background check, and current contact information. Failure to provide any of these items shall be grounds to deny renewal of the certification.

History of Section. P.L. 2015, ch. 260, § 9; P.L. 2015, ch. 275, § 9.

Compiler’s Notes.

P.L. 2015, ch. 260, § 9, and P.L. 2015, ch. 275, § 9 enacted identical versions of this section.

Effective Dates.

P.L. 2015, ch. 260, § 41, provides that this section takes effect on September 1, 2015.

P.L. 2015, ch. 275, § 41, provides that this section takes effect on September 1, 2015.

9-5-10.5. Suspension, revocation or review of certification of certified constables.

  1. Upon the receipt of a written complaint, request of the board, request of a judge of any court, or upon its own initiative, the department shall ascertain the facts and, if warranted, hold a hearing for the reprimand, suspension, or revocation of a certification. The director, or his or her designee, has the power to refuse a certification for cause or to suspend or revoke a certification or place an applicant on probation for any of the following reasons:
    1. The certification was obtained by false representation or by fraudulent act or conduct;
    2. Failure to report to the department any of the following within thirty (30) days of the occurrence:
      1. Any criminal prosecution taken in any jurisdiction. The constable shall provide the initial complaint filed and any other relevant legal documents;
      2. Any change of name, address or other contact information;
      3. Any administrative action taken against the constable in any jurisdiction by any government agency within or outside of this state. The report shall include a copy of all relevant legal documents.
    3. Failure to respond to the department within ten (10) days to any written inquiry from the department;
    4. Where a certified constable, in performing or attempting to perform any of the acts mentioned in this section, is found to have committed any of the following:
      1. Inappropriate conduct that fails to promote public confidence, including failure to maintain impartiality, equity, and fairness in the conduct of his or her duties;
      2. Neglect, misfeasance, or malfeasance of his or her duties;
      3. Failure to adhere to court policies, rules, procedures, or regulations;
      4. Failure to maintain the highest standards of personal integrity, honesty, and truthfulness, including misrepresentation, bad faith, dishonesty, incompetence, or an arrest or conviction of a crime.
    5. A copy of the determination of the director of department of business regulation, or his or her designee, shall be forwarded to the chief judge of the district court within ten (10) business days.
  2. Nothing herein shall be construed to prohibit the chief of any court from suspending the certification of a constable to serve process within his or her respective court pending the outcome of an investigation consistent with the provisions of chapter 35 of title 42.

History of Section. P.L. 2015, ch. 260, § 9; P.L. 2015, ch. 275, § 9.

Compiler’s Notes.

P.L. 2015, ch. 260, § 9, and P.L. 2015, ch. 275, § 9 enacted identical versions of this section.

Effective Dates.

P.L. 2015, ch. 260, § 41, provides that this section takes effect on September 1, 2015.

P.L. 2015, ch. 275, § 41, provides that this section takes effect on September 1, 2015.

9-5-10.6. Certified constables’ board.

  1. There shall be created a certified constables’ board that shall review each applicant and recommend him or her for training, conduct the oral examination of each applicant, and that shall serve as a resource to the chief judge and the department in the consideration of the practical aspects of constable practice. The board shall consist of five (5) members: two (2) who shall be constables in good standing who have served for at least ten (10) years, one of whom shall be appointed by the Rhode Island Constables, Inc. and one appointed by the Rhode Island Constables Association; and three (3) attorneys who shall be licensed to practice law by the supreme court in good standing who shall be appointed by the chief judge of the district court. Members of the constables’ board shall serve for terms of five (5) years until a successor is appointed and qualified.
  2. A representative of the board may attend hearings in order to furnish advice to the department. The board may also consult with the department of business regulation from time to time on matters relating to constable certification.

History of Section. P.L. 2015, ch. 260, § 9; P.L. 2015, ch. 275, § 9.

Compiler’s Notes.

P.L. 2015, ch. 260, § 9, and P.L. 2015, ch. 275, § 9 enacted identical versions of this section.

Effective Dates.

P.L. 2015, ch. 260, § 41, provides that this section takes effect on September 1, 2015.

P.L. 2015, ch. 275, § 41, provides that this section takes effect on September 1, 2015.

9-5-11. District court process returnable in any division.

Writs and other process from the district court, duly signed and sealed, may be made returnable in any division, including writs of replevin; provided, that writs of replevin shall be made returnable to the district court in any division in which the goods or chattels to be replevied are taken, attached, or detained.

History of Section. C.P.A. 1905, § 504; G.L. 1909, ch. 299, § 8; G.L. 1923, ch. 349, § 8; G.L. 1938, ch. 514, § 8; P.L. 1942, ch. 1143, § 2; G.L. 1956, § 9-5-11 ; P.L. 1965, ch. 55, § 13; P.L. 1969, ch. 239, § 8.

NOTES TO DECISIONS

Section 34-21-2 .

Section 34-21-2 should be read by way of exception to this section. Cahill v. Goodell, 20 R.I. 481 , 40 A. 1, 1898 R.I. LEXIS 85 (1898).

9-5-12, 9-5-13. Repealed.

History of Section. C.P.A. 1905, § 505; G.L. 1909, ch. 299, §§ 9, 10; G.L. 1923, ch. 349, §§ 9, 10; G.L. 1938, ch. 514, §§ 9, 10; G.L. 1956, §§ 9-5-12 , 9-5-13; Repealed by P.L. 1965, ch. 55, § 14, effective January 10, 1966. For present form of summons, see Super. Ct. R. Civ. P. Rule 4(a) and Form 1.

9-5-14. Writs of mesne process.

The plaintiff in any action may, as often as may be necessary, at any time before final judgment in the action, sue out a writ of mesne process to be made returnable to the court in which the action is then pending, the writ of mesne process commanding the attachment of the real or personal estate of the defendant, including his or her personal estate in the hands or possession of any person, partnership, or corporation, as the trustee of the defendant, and his or her stock or shares in any banking association or other incorporated company, and may also sue out a writ of mesne process commanding the arrest of the defendant unless the defendant has been arrested in the action; provided, that the plaintiff, his or her agent, or attorney shall make affidavit, to be endorsed on or annexed to the writ, setting forth facts which would authorize an attachment or arrest at the commencement of the action. The writ of mesne process shall conform, as nearly as may be, to a writ of attachment or arrest issued at the commencement of an action and shall be returnable at a time, before final judgment, to be specified in the writ.

History of Section. C.P.A. 1905, § 513; G.L. 1909, ch. 299, § 17; G.L. 1923, ch. 349, § 17; G.L. 1938, ch. 514, § 11; P.L. 1942, ch. 1143, § 3; G.L. 1956, § 9-5-14 ; P.L. 1965, ch. 55, § 13.

NOTES TO DECISIONS

Court by Which Issued.

Writs of mesne process must be sued out of the court in which the action shall have commenced. Hall v. Tabor, 34 R.I. 508 , 84 A. 793, 1912 R.I. LEXIS 73 (1912). [Decision prior to 1942 amendment.].

Pending Action Required.

This section does not authorize a writ of mesne process as an original writ in a proceeding in rem against nonresidents, but is a writ dependent upon an action previously commenced by proper service of an original writ. Home Sav. Bank v. Rolando, 57 R.I. 205 , 189 A. 27, 1937 R.I. LEXIS 87 (1937).

Remedies Strictly Construed.

Attachment and garnishment are statutory remedies, are in derogation of the common law, and therefore are to be strictly construed. Home Sav. Bank v. Rolando, 57 R.I. 205 , 189 A. 27, 1937 R.I. LEXIS 87 (1937).

Successive Attachments.

Plaintiff cannot proceed by successive attachments under separate writs without entering his first writ in court. McNally v. Wilkinson, 20 R.I. 315 , 38 A. 1053, 1897 R.I. LEXIS 128 (1897).

Time of Return.

A writ of mesne process was void because not returnable at a time before final judgment. Hathaway v. Wilson, 52 R.I. 447 , 161 A. 234, 1932 R.I. LEXIS 92 (1932).

9-5-15. Form for writs of replevin.

Writs of replevin shall be substantially in the following form: WRIT OF REPLEVIN. THE STATE OF RHODE ISLAND. SC. To the sheriffs of our several counties, their deputies, or to a certified constable, (SEAL) Greeting: We command you that you replevy, if to be found within your precinct, the goods and chattels following, viz.: (Here enumerate and particularly describe them) belonging to of now taken (detained, or attached as the case may be) by in the county of and them deliver unto the said , provided the same are not taken, attached, or detained upon original writ, mesne process, warrant of distress, or upon execution as the property of the said ; and summon the said to appear 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 , to answer unto the said in a plea of replevin that the said on the . day of at said unlawfully, and without justifiable cause, took the goods and chattels of the said . as aforesaid, and them unlawfully detained unto this day, (or, unlawfully detained the goods and chattels aforesaid, as the case may be) to the damage of the said , as he or she says, dollars. Hereof fail not, and make true return of this writ with your doings thereon, together with the bond you shall take of the plaintiff. Witness, the seal of our superior court, at day of in the year , Clerk.

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History of Section. C.P.A. 1905, § 515; G.L. 1909, ch. 299, § 19; G.L. 1923, ch. 349, § 19; G.L. 1938, ch. 514, § 12; G.L. 1956, § 9-5-15 ; P.L. 2015, ch. 260, § 8; P.L. 2015, ch. 275, § 8; P.L. 2021, ch. 77, § 5, effective June 23, 2021; P.L. 2021, ch. 78, § 5, effective June 23, 2021.

Compiler’s Notes.

P.L. 2015, ch. 260, § 8, and P.L. 2015, ch. 275, § 8 enacted identical amendments to this section.

P.L. 2021, ch. 77, § 5, and P.L. 2021, ch. 78, § 5 enacted identical amendments to this section.

Effective Dates.

P.L. 2015, ch. 260, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

P.L. 2015, ch. 275, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

Cross References.

Actions of replevin, § 34-21-1 et seq.

NOTES TO DECISIONS

Claim by Third Person.

Since the form of the writ and the procedure in replevin are both prescribed by statute and neither the writ nor the statute contains any direction to the officer as to the course to be pursued in event of claim by a third person, the officer was fully justified in proceeding with the service of the writ. Curry, Richards & Anthony v. Johnson, 13 R.I. 121 , 1880 R.I. LEXIS 54 (1880).

Defects in Writ.

Writ and declaration in replevin in which the words “original writ” were omitted after the words “provided the same is not taken, attached, or detained upon,” and before the words “mesne process, warrant of distress, or upon execution” was fatally defective. Parker v. Palmer, 13 R.I. 359 , 1881 R.I. LEXIS 38 (1881).

A writ of replevin which omitted the words “original writ” was not defective in the sense that plaintiff in replevin who himself was responsible for it could take advantage, but on the contrary a judgment for return and restoration would be good against the plaintiff in replevin in spite of such defect. Goodell v. Bates, 14 R.I. 65 , 1883 R.I. LEXIS 5 (1883).

Delivery of Property Not Conversion.

Inasmuch as the statute specifically requires that replevied property be delivered to the plaintiff named in the writ, the officer serving the writ does not thereby cause such plaintiff to be guilty of conversion though the replevin action later be abated. McDonald v. Brown, 61 R.I. 40 , 199 A. 750, 1938 R.I. LEXIS 27 (1938).

An officer carrying out the mandate of a writ which is regular upon its face and issues from a court of competent jurisdiction is not guilty of conversion or trover though the replevin action later be abated. McDonald v. Brown, 61 R.I. 40 , 199 A. 750, 1938 R.I. LEXIS 27 (1938).

Description of Property.

Writ of replevin commanding the sheriff to replevy “all the goods, stocks and fixtures in the store at Johnston, at a place called Dry Brook, occupied by [the defendant], of the value of $800; and the books of account and evidence of indebtedness showing indebtedness of persons to [defendant] the value of $50” described the property with sufficient particularity. Waldron, Wightman & Co. v. Leach, 9 R.I. 588 , 1870 R.I. LEXIS 28 (1870).

9-5-16, 9-5-17. Repealed.

History of Section. C.P.A. 1905, §§ 515, 516; G.L. 1909, ch. 299, §§ 19, 20; G.L. 1938, ch. 514, §§ 12, 13; G.L. 1956, §§ 9-5-16 , 9-5-17; Repealed by P.L. 1965, ch. 55, § 14, effective January 10, 1966. Writs of scire facias have been abolished in both the superior and district courts, see Super. Ct. R. Civ. P. Rule 81(c) and Dist. Ct. R. Civ. P. Rule 81(c).

9-5-18. Adaptation of forms to more than one defendant.

Whenever process shall issue against more than one defendant, the forms provided by law may be altered so as to combine the summons, the writ of arrest, and the writ of attachment, in order that they may be served on one or more of the defendants by one form of service and on the other or others by another form of service.

History of Section. C.P.A. 1905, § 518; G.L. 1909, ch. 299, § 22; G.L. 1923, ch. 349, § 22; G.L. 1938, ch. 514, § 15; G.L. 1956, § 9-5-18 ; P.L. 1965, ch. 55, § 13.

9-5-19. Adaptation of forms not prescribed.

Every court shall adapt the form of process necessary to be issued thereby, whenever no form is prescribed, so as to conform to law and, as far as the nature of the case will admit, to the forms prescribed in this chapter and in applicable procedural rules.

History of Section. C.P.A. 1905, § 519; G.L. 1909, ch. 299, § 23; G.L. 1923, ch. 349, § 23; G.L. 1938, ch. 514, § 16; G.L. 1956, § 9-5-19 ; P.L. 1965, ch. 55, § 13.

9-5-20. Writs and other process against unknown defendant.

Whenever the name of any defendant or respondent is not known to the plaintiff, the summons and other process may issue against him or her by a fictitious name, or by such description as the plaintiff or complainant may select; and if duly served, it shall not be abated for that cause, but may be amended with or without terms as the court may order.

History of Section. C.P.A. 1905, § 520; G.L. 1909, ch. 299, § 24; G.L. 1923, ch. 349, § 24; G.L. 1938, ch. 514, § 17; G.L. 1956, § 9-5-20 ; P.L. 1965, ch. 55, § 13.

NOTES TO DECISIONS

In General.

In a federal diversity action in the District of Rhode Island, “John Doe” pleadings must be allowed where the requirements of this section are met. Westfall v. Whittaker, Clark & Daniels, Metropolitan Talc Co., 571 F. Supp. 304, 1983 U.S. Dist. LEXIS 14027 (D.R.I. 1983).

Where the plaintiff did not know the names and identity of police officers who assaulted him and he had sought such information from the police department without success, this section provided for the complaint to be filed against unknown defendants. Sousa v. Casey, 111 R.I. 623 , 306 A.2d 186, 1973 R.I. LEXIS 1256 (1973).

“Other Process”.

The meaning of the words “other process” in this section was “complaint,” since that was the method established by the legislature to commence a complaint under the new form of pleadings. Sousa v. Casey, 111 R.I. 623 , 306 A.2d 186, 1973 R.I. LEXIS 1256 (1973).

Reasonable Time of Service.

A “reasonable time” within which a known defendant should be served under RCP, Rule 4, is not necessarily the same as a “reasonable time” within which an unknown defendant should be served pursuant to this section. Westfall v. Whittaker, Clark & Daniels, Metropolitan Talc Co., 571 F. Supp. 304, 1983 U.S. Dist. LEXIS 14027 (D.R.I. 1983).

Where plaintiff commenced his lawsuit on May 24, 1979 by way of a “John Doe” complaint but the actual defendants were not served with process until June, 1982, more than three years after the filing of the original complaint, such a delay in service was patently unreasonable. Westfall v. Whittaker, Clark & Daniels, Metropolitan Talc Co., 571 F. Supp. 304, 1983 U.S. Dist. LEXIS 14027 (D.R.I. 1983).

Statute of Limitations.

There was nothing in this section requiring service to be made within the statute of limitations but only that it be made within a reasonable time after a complaint has been filed unless there was a valid excuse for the delay. Sousa v. Casey, 111 R.I. 623 , 306 A.2d 186, 1973 R.I. LEXIS 1256 (1973).

The object of this section is to provide a plaintiff with an opportunity to toll the applicable statute of limitations against a fictitiously named defendant upon the filing of a complaint. Souza v. Erie Strayer Co., 557 A.2d 1226, 1989 R.I. LEXIS 89 (1989).

A material question of fact exists regarding the effective service of process on an unknown defendant whose identity is later discovered, precluding summary judgment on a statute of limitations defense in a personal injury action. Souza v. Erie Strayer Co., 557 A.2d 1226, 1989 R.I. LEXIS 89 (1989).

R.I. Gen. Laws § 9-5-20 did not toll R.I. Gen. Laws § 9-1-14(b) in an employee’s defamation action, based on the employee’s filing of a “John Doe” complaint, because R.I. Gen. Laws § 9-5-20 did not apply, as the employee admitted the employee knew the identity of a detective whose report contained the alleged defamatory statements. Sola v. Leighton, 45 A.3d 502, 2012 R.I. LEXIS 78 (2012).

Superior court properly granted summary judgment in favor of a condominium association in a pedestrian’s personal injury action because the three-year statute of limitations was not tolled by the provisions of the fictitious name statute, § 9-5-20 , where the pedestrian knew the identity of the association before the statutory period expired, and her confusion over the name simply did not change the fact that she knew the identity of the association. Garant v. Winchester, 150 A.3d 606, 2016 R.I. LEXIS 124 (2016).

Substitution of Actual Party.

Plaintiff was entitled to substitute multiple corporations even though original complaint only mentioned “John Doe Corporation.” Westfall v. Whittaker, Clark & Daniels, Metropolitan Talc Co., 571 F. Supp. 304, 1983 U.S. Dist. LEXIS 14027 (D.R.I. 1983).

Once having used a fictitious name in place of an unidentified defendant, this section does not permit a plaintiff to then give up the search for the identity of the real defendant. Grossi v. Miriam Hosp., 689 A.2d 403, 1997 R.I. LEXIS 49 (1997).

— Due Diligence Obligation.

A “due diligence” obligation is imposed upon plaintiff in order to bring the real defendant into the litigation and to subject that defendant to the jurisdiction of the particular court by proper reasonable notice and diligent service. Grossi v. Miriam Hosp., 689 A.2d 403, 1997 R.I. LEXIS 49 (1997).

Summary Judgments.

The failure to name another John Doe defendant in the amended complaint did not completely cut off any action against an additional defendant so long as due diligence had been exercised by the plaintiff to bring that defendant before the court, and whether due diligence was exercised is a question of fact, which is impossible to determine on a motion for summary judgment. Hall v. Insurance Co. of N. Am., 666 A.2d 805, 1995 R.I. LEXIS 249 (1995).

Collateral References.

Propriety of use of fictitious name of defendant in federal district court. 139 A.L.R. Fed. 553.

9-5-21. Signature of processes in action involving clerk of court.

Whenever the clerk of any court shall be a party to an action, suit, or other proceeding, civil or criminal, all processes issuing from the court thereon shall be signed by a justice thereof.

History of Section. C.P.A. 1905, § 521; G.L. 1909, ch. 299, § 25; G.L. 1923, ch. 349, § 25; G.L. 1938, ch. 514, § 18; G.L. 1956, § 9-5-21 ; P.L. 1965, ch. 55, § 13.

9-5-22. False swearing in affidavit to support writ.

Every person who shall willfully swear falsely to any statement in an affidavit made by him or her, by means of which affidavit a writ of arrest or attachment shall have issued and been served by arrest or attachment, shall be deemed guilty of perjury.

History of Section. C.P.A. 1905, § 522; G.L. 1909, ch. 299, § 26; G.L. 1923, ch. 349, § 26; G.L. 1938, ch. 514, § 19; G.L. 1956, § 9-5-22 .

Cross References.

Perjury, § 11-33-2 .

NOTES TO DECISIONS

Perjury.

The language in the statute enlarges the scope of the crime of perjury, as it existed at common law and makes any wilfully false swearing in judicial proceedings perjury, regardless of the question of its materiality to the issue. State v. Miller, 26 R.I. 282 , 58 A. 882, 1904 R.I. LEXIS 70 (1904).

9-5-23. Time of service of original writs — Writs returnable on holiday.

Every original writ issuing from the superior court shall be returnable thereto on the day named in the writ, and shall be served not less than ten (10) nor more than sixty (60) days before the return day thereof, except in those cases in which special provision by law shall be made to the contrary; and every original writ issuing from a district court shall be served not less than six (6) nor more than twenty (20) days before the return day thereof; provided, that writs issued in civil actions returnable to any court on a legal holiday shall not thereby abate, but may be entered on the next court day of the court for civil business with the same effect as if made returnable at such later court day, and in such event all periods of time for pleading and for action of every character in the case shall begin to run from the court day next following the legal holiday.

History of Section. C.P.A. 1905, § 525; G.L. 1909, ch. 300, § 1; G.L. 1923, ch. 350, § 1; G.L. 1938, ch. 515, § 1; G.L. 1956, § 9-5-23 .

Cross References.

Divorce proceedings, return day, notice and process, § 15-5-14 .

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

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

Holidays, § 25-1-1 et seq.

Militiamen, exemption of pay and allowances from process, § 30-7-9 .

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

Comparative Legislation.

Return day of writs:

Conn. Gen. Stat. § 52-46 et seq.

Mass. Ann. Laws ch. 223, § 22 et seq.

NOTES TO DECISIONS

Six Days.

Writ served at any time on May 6 and returnable May 12 was served “not less than six” days before return day. Mathewson v. Ham, 21 R.I. 203 , 42 A. 871, 1899 R.I. LEXIS 22 (1899).

Collateral References.

Inclusion or exclusion of first and last days in computing time for service of process which must take place a certain number of days before a known future date. 98 A.L.R.2d 1331.

Summons returnable on legal holiday, sufficiency of. 6 A.L.R. 846; 97 A.L.R. 746.

9-5-24. Service on Sunday void.

No civil process whatsoever shall be served on Sunday, but every such service shall be utterly void.

History of Section. C.P.A. 1905, § 559; G.L. 1909, ch. 300, § 41; G.L. 1923, ch. 350, § 41; G.L. 1938, ch. 515, § 7; G.L. 1956, § 9-5-24 .

Collateral References.

Sunday, publication of notice on, as contravening statute prohibiting service of process on Sunday. 13 A.L.R. 669.

9-5-25. Exemption of voters from arrest.

All persons entitled to vote shall be protected from arrest in civil cases, on the days of election for city or town officers, and for state officers, representatives in congress, and electors of president and vice-president of the United States; and on the day preceding and the day following the election.

History of Section. G.L. 1896, ch. 14, § 1; G.L. 1909, ch. 20, § 1; G.L. 1923, ch. 19, § 1; G.L. 1938, ch. 327, § 1; G.L. 1956, § 9-5-25 .

Cross References.

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

Jurors, exemption from process, § 9-10-21 .

Persons brought into state by extradition, immunity, § 12-9-29 .

Persons summoned from out of state as witnesses, immunity, §§ 12-16-10 , 12-16-11 .

Right to vote, R.I. Const., art. II, § 1 .

Writs of arrest in civil cases, § 10-10-1 et seq.

NOTES TO DECISIONS

Exemption From Arrest.

Inasmuch as it was the loss of the remedy to arrest the body of the voter that gave the creditor the right to attach the goods of the voter, an elector would be privileged from attachment on election day. B. B. Knight & Co. v. Richmond & Carr, 2 R.I. 75 , 1852 R.I. LEXIS 1 (1852).

9-5-26. Repealed.

History of Section. C.P.A. 1905, § 526; G.L. 1909, ch. 300, § 4; G.L. 1923, ch. 350, § 4; G.L. 1938, ch. 515, § 4; G.L. 1956, § 9-5-26 ; Repealed by P.L. 1965, ch. 55, § 14, effective January 10, 1966. For manner of service in superior court, see Super. Ct. R. Civ. P. Rule 4(d). For manner of service in district court, see Dist. Ct. R. Civ. P. Rule 4(d) — (g).

Compiler’s Notes.

Former § 9-5-26 concerned manner of service of writ of summons.

9-5-27. Service on nonresident guardian, executor, or administrator.

Service of any process may be made by any disinterested person upon any nonresident guardian, executor, or administrator, appointed or approved by any court of probate in this state, either by reading the process to him or her or by leaving an attested copy thereof with him or her, or by leaving the copy at his or her last and usual place of abode with some person living there; and in the latter case, by also publishing notice to him or her in such manner as the court, out of which the process issues, shall direct. And if the guardian, executor, or administrator shall not appear and answer the process, the probate court may, in its discretion, remove the guardian, executor, or administrator.

History of Section. C.P.A. 1905, § 552; G.L. 1909, ch. 300, § 34; G.L. 1923, ch. 350, § 34; G.L. 1938, ch. 515, § 5; G.L. 1956, § 9-5-27 .

Collateral References.

Necessity and sufficiency of service on removal of nonresident trustee. 173 A.L.R. 1294.

9-5-28. Affidavit or admission of service on nonresident.

A disinterested person, serving process as provided in § 9-5-27 , shall make affidavit of the service thereof, and of the manner in which, the time when, and the place where the service was made; or the service thereof may be made by the admission of service by the guardian, executor, or administrator, on the back of the process, and by his or her acknowledgment thereof some officer authorized to administer oaths.

History of Section. C.P.A. 1905, § 553; G.L. 1909, ch. 300, § 35; G.L. 1923, ch. 350, § 35; G.L. 1938, ch. 515, § 6; G.L. 1956, § 9-5-28 ; P.L. 1997, ch. 326, § 18.

9-5-29. Appointment of attorney by nonresidents doing business in state.

Every individual not a resident of this state and every partnership composed of persons not such residents, having a usual place of business in this state, temporarily or permanently, or engaged here, temporarily or permanently, and with or without a usual place of business here, in the construction, erection, alteration, or repair of a building, bridge, railroad, railway, or structure of any kind, shall, before carrying on business in this state, file in the office of the secretary of state a written power appointing some competent person resident in this state as his or her or its attorney with authority to accept service of process against the individual or partnership in this state, containing an agreement on the part of the maker that the service of any lawful process in this state on the attorney shall be of the same force and validity as service on the individual or partnership; and providing, that, in case of garnishment, when the fees therefor shall have been paid or tendered, the attorney may make the affidavit required by law in such cases.

History of Section. P.L. 1930, ch. 1614, § 1; G.L. 1938, ch. 516, § 1; G.L. 1956, § 9-5-29 .

Rules of Court.

For manner of service of summons outside state, see Super. Ct. R. Civ. P. Rule 4(f) — (h).

For service by publication, see Super. Ct. R. Civ. P. Rule 4(i).

Cross References.

Appointment of attorney by foreign corporations, § 9-5-34 .

Cigarettes, nonresident distributors, attorney to receive process, § 44-20-26 .

Expressmen, appointment of attorney to receive process, § 39-10-2 .

Foreign banks and trust companies, agents to receive process, § 19-5-10 .

Foreign insurers, commissioner as attorney to receive process, §§ 27-2-13 , 27-2-14 .

Redevelopment agencies, resident attorneys for service of process, § 45-31-18 .

Securities broker, consent to service of process, § 7-11-708 .

Unauthorized Insurers’ Process Act, § 27-16-3 et seq.

Vehicle, operation by nonresident, appointment of registrar as attorney to receive process, § 31-7-6 .

Workers’ compensation, insurance commissioner as agent to receive process, § 28-35-13 .

Workers’ compensation, service of process on nonresident employers, § 28-29-9 .

Collateral References.

Action, otherwise in personam, seeking lien or title in respect to property in state described in pleadings but not attached, as one in rem in which jurisdiction may be obtained by constructive service upon nonresident. 174 A.L.R. 417.

What amounts to doing business in a state within statute providing for service of process in action against nonresident natural person or persons doing business in state. 10 A.L.R.2d 200.

9-5-30. Replacement of attorney for nonresident — Revocation of power.

If resident attorney, as provided in § 9-5-29 , shall die, resign, or remove from the state, the individual or partnership shall forthwith file with the secretary of state a further similar written power appointing some other competent resident in this state as his or her or its attorney for the purpose as provided in § 9-5-29 . No power of attorney required to be filed by § 9-5-29 shall be revoked until after a like power shall have been given to some other competent person resident in this state and filed. Any such individual or partnership which has ceased to have a usual place of business in this state or to be engaged in this state in the construction, erection, alteration, or repair of a building, bridge, railroad, railway, or structure of any kind, may, however, revoke the power of attorney by a written instrument of revocation filed in the office of the secretary of state; but no such revocation shall be effective as to any liability arising out of any act or omission occurring prior to the time when the individual or partnership ceased to have a usual place of business in this state or to be engaged here.

History of Section. P.L. 1930, ch. 1614, § 1; G.L. 1938, ch. 516, § 1; G.L. 1956, § 9-5-30 ; P.L. 1997, ch. 326, § 18.

9-5-31. Filing fee for power of attorney.

A fee of five dollars ($5.00) shall be paid to the secretary of state, for the use of the state, upon the filing in his or her office of any paper required to be filed by §§ 9-5-29 9-5-32 .

History of Section. P.L. 1930, ch. 1614, § 2; G.L. 1938, ch. 516, § 2; G.L. 1956, § 9-5-31 .

9-5-32. Notice to nonresident to appoint attorney — Agents for noncomplying persons.

Every individual or partnership required by §§ 9-5-29 9-5-31 to file a power of attorney and failing so to do shall be notified by the secretary of state, upon information and request by any resident of this state, of the requirements of §§ 9-5-29 9-5-32 ; and every person who acts within the state as agent of any such individual or partnership which fails, after receipt of the notice from the secretary of state, to file the power shall for such failure be liable to a penalty of ten dollars ($10.00) for each day during which the person has so acted after the receipt of the notice by the individual or partnership.

History of Section. P.L. 1930, ch. 1614, § 3; G.L. 1938, ch. 516, § 3; G.L. 1956, § 9-5-32 .

9-5-33. Jurisdiction over foreign corporations and over nonresident individuals, partnerships, or associations.

  1. Every foreign corporation, every individual not a resident of this state or his or her executor or administrator, and every partnership or association, composed of any person or persons not such residents, that shall have the necessary minimum contacts with the state of Rhode Island, shall be subject to the jurisdiction of the state of Rhode Island, and the courts of this state shall hold such foreign corporations and such nonresident individuals or their executors or administrators, and such partnerships or associations amenable to suit in Rhode Island in every case not contrary to the provisions of the constitution or laws of the United States.
  2. Service of process may be made on any such foreign corporation, nonresident individual or his or her executor or administrator, and such partnership or association within or without the state in the manner provided by any applicable procedural rule or in the manner prescribed by order of the court in which the action is brought.
  3. Nothing herein shall limit or affect the right to serve process upon the nonresident individual or his or her executor or administrator, or the partnership or association, or a foreign corporation within this state or without this state in any manner now or hereafter permitted by law.

History of Section. P.L. 1960, ch. 124, § 1; P.L. 1965, ch. 55, § 13; P.L. 1966, ch. 1, § 7.

Cross References.

Service of process on foreign corporation, § 7-1.2-1410 .

NOTES TO DECISIONS

In General.

A defendant’s minimalist and conclusory assertions that he neither resided in the state nor intended to submit himself “as an individual” to the state’s jurisdiction did not preclude the very real possibility that he, as an out-of-state corporate officer, engaged in acts from which a state court could properly conclude that it had personal jurisdiction over him, such as personally guaranteeing a contract or running the corporation when the corporate charter was revoked. Video Prods. Distribs. v. Kilsey, 682 A.2d 1381, 1996 R.I. LEXIS 235 (1996).

Cause of Action Arising in State.

An action for the wrongful death of a student of Brown University at Providence caused by the electrocution of the student while using certain high voltage electrophoresis equipment sold to Brown University by the defendant, who was a New York resident, brought in the district court of the eastern district of New York by plaintiffs, who were residents of Maryland, arose in Rhode Island and could be transferred to the Rhode Island district court on motion of defendant even though defendant had no contacts in the state of Rhode Island other than the sale in question. Rosen v. Savant Instruments, Inc., 264 F. Supp. 232, 1967 U.S. Dist. LEXIS 7263 (E.D.N.Y. 1967).

Where a health network allegedly authorized treatment of one of its members and later denied doing so, the court had jurisdiction over the matter under R.I. Gen. Laws § 9-5-33 because if such approval was in fact conferred, it should have been evident to the network that the authorization would induce the hospital to provide medical care and the economic impacts of non-payment for such care would be felt in the forum state. Women & Infants Hosp. v. Cmty. Health Network of Conn., Inc., 394 F. Supp. 2d 488, 2005 U.S. Dist. LEXIS 7495 (D.R.I. 2005).

Cause of Action Arising Outside State.

Where foreign corporation owns stock in one of its subsidiaries within a state but had considerably less than total control over the subsidiary, and a cause of action attempting to gain in personam jurisdiction over that foreign corporation arose out of activities which were unconnected with this state, the totality of contacts does not give in personam jurisdiction. Conn v. ITT Aetna Fin. Co., 105 R.I. 397 , 252 A.2d 184, 1969 R.I. LEXIS 770 (1969).

The long arm statute was not applicable in an action on a tort committed in another jurisdiction by a Rhode Island resident who at the time of service by mail had become a resident of another jurisdiction. Lucini v. Mayhew, 113 R.I. 641 , 324 A.2d 663, 1974 R.I. LEXIS 1219 (1974).

Personal jurisdiction over the defendant for a claim arising from a car accident which occurred in Massachusetts could not be based on the defendant’s residence or his unilateral decision to do business with the Rhode Island registry of motor vehicles in order to reinstate his license. Messier v. Belisle, 640 A.2d 959, 1994 R.I. LEXIS 132 (1994).

Personal jurisdiction was properly exercised under R.I. Gen. Laws § 9-5-33(1) and in accordance with the Due Process Clause of the U.S. Constitution over a nonresident defendant competitor because the competitor’s conduct in Florida and California was a cause of the breach of contract that occurred in Rhode Island, the in-forum injury was clearly related to the tortious interference claim, it was foreseeable that the competitor could be accountable for its actions in Rhode Island since it knew of the contract and was told by counsel that there could be a problem in hiring defendant former employee, and the gestalt factors militated strongly in favor of jurisdiction in Rhode Island. Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 2009 U.S. App. LEXIS 23298 (1st Cir. 2009).

Constitutional Limits.

The Supreme Court of Rhode Island has interpreted Rhode Island’s long-arm statute as reaching to the full breadth of the fourteenth amendment’s due process clause. Rhode Island Hospital Trust Nat'l Bank v. San Gabriel Hydroelectric Partnership, 667 F. Supp. 66, 1987 U.S. Dist. LEXIS 8131 (D.R.I. 1987).

Because Rhode Island has extended its longarm statute, § 9-5-33 , to the extent permitted by the federal constitution, there are no separate state statutory requirements for the exercise of jurisdiction. The fundamental question is, thus, whether the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there. O'Neil v. Picillo, 682 F. Supp. 706, 1988 U.S. Dist. LEXIS 2737 (D.R.I. 1988), aff'd, 883 F.2d 176, 1989 U.S. App. LEXIS 12314 (1st Cir. 1989).

The language of this section permits Rhode Island courts to exercise jurisdiction over foreign defendants up to the limits of the constitution. Bendick v. Picillo, 525 A.2d 1310, 1987 R.I. LEXIS 502 (1987).

Rhode Island’s long arm statute, under R.I. Gen Laws § 9-5-33(a) , permits the exercise of jurisdiction over nonresident defendants to the fullest extent allowed by the United States Constitution. Cerberus Partners, L.P. v. Gadsby & Hannah, LLP, 836 A.2d 1113, 2003 R.I. LEXIS 229 (2003).

Contracts.

In an action by a Massachusetts corporation admitted to do business and having its principal office in Rhode Island, against some sixty corporations located in states along the eastern seaboard for declaratory judgment as to the validity of agreements for licensing defendants to use certain patents owned by plaintiff in exchange for royalties, jurisdiction over the persons of defendants existed by virtue of the following factors: The contracts between the parties, final execution of the contracts in Rhode Island, and various relations supportive of the central exchange of use to licensees for royalties to licensor, including in particular plaintiff’s machinery sales and leasing, plaintiff’s development and design program, plaintiff’s service and parts sales, plaintiff’s instructional program, and plaintiff’s account audit methods. Leesona Corp. v. Concordia Mfg. Co., 312 F. Supp. 392, 1970 U.S. Dist. LEXIS 12009 (D.R.I. 1970).

Jurisdiction over an out-of-state corporation was proper, based on a contractual relationship which contemplated a consistent course of communications, as to sales and orders, between a Rhode Island corporation, which obligated itself to be the out-of-state corporation’s exclusive representative to a portion of its jewelry trade, and the out-of-state corporation. Dynamic Concepts, Inc. v. Modern Chain Mfg. Co., 610 F. Supp. 285, 1985 U.S. Dist. LEXIS 18949 (D.R.I. 1985).

Plaintiff marketing company failed to establish sufficient minimum contacts to attach personal jurisdiction under R.I. Gen. Laws § 9-5-33(a) between the forum and defendant nonresident customers as to contract claims, where virtually all the negotiations and meetings relevant to the claims occurred in Florida. Hainey v. World Am Communs., Inc., 263 F. Supp. 2d 338, 2003 U.S. Dist. LEXIS 8668 (D.R.I. 2003).

Forfeiture.

Trial court erred in dismissing an employee’s complaint for lack of personal jurisdiction because an employer forfeited his jurisdictional defense by proceeding through discovery, arbitration, and pretrial litigation for more than three and a half years after raising the defense in his answer; because the employer forfeited the jurisdictional defense, the traditional notions of fair play and substantial justice were not offended by requiring him to acquiesce to the jurisdiction of the State. Pullar v. Cappelli, 148 A.3d 551, 2016 R.I. LEXIS 116 (2016).

Jurisdiction by Waiver.

Defendant waived his right to move for dismissal for lack of the minimum contacts in Rhode Island required by this section by failure to join that motion with a previously-filed motion to dismiss for failure to state a cause of action. Tiernan v. Dunn, 295 F. Supp. 1253, 1969 U.S. Dist. LEXIS 8377 (D.R.I. 1969).

In a proceeding by a mother for support of herself and her child under the Uniform Reciprocal Enforcement of Support Act, the mother’s argument that the nonresident father waived the jurisdictional issue by filing an affidavit showing his present needs ignored the provisions of the Family Court Rules of Procedure for Domestic Relations allowing alternative pleading, specifically Rule 12(b), which in its relevant parts states that no defense is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. Carrillo v. Carrillo, 523 A.2d 439, 1987 R.I. LEXIS 440 (1987).

Long-Arm Statute.

Removal of the parties from the state does not terminate the Family Court’s jurisdiction over them. Porter v. Porter, 684 A.2d 259, 1996 R.I. LEXIS 260 (1996).

The state legislature has abrogated the common law by enacting a long-arm statute which expressly provides for jurisdiction over the executor of an estate if jurisdiction could have been maintained over the decedent. Morel v. Estate of Davidson, 148 F. Supp. 2d 161, 2001 U.S. Dist. LEXIS 10140 (D.R.I. 2001).

Hearing justice was correct in rejecting the application of the stream-of-commerce theory for specific jurisdiction and in finding no jurisdiction; the injury allegedly caused by the tire, which was manufactured and installed in Tennessee, occurred in Connecticut, plaintiff’s claims did not arise from a car accident in Rhode Island, and although the decedent was a resident of Rhode Island whose death ultimately occurred in Rhode Island, those facts alone were not enough. Martins v. Bridgestone Ams. Tire Operations, LLC, 266 A.3d 753, 2022 R.I. LEXIS 2 (2022).

Minimum Contacts.

Although defendant airline had no property in Rhode Island and did not render any transportation to or from any point in Rhode Island, nevertheless where it advertised its services in Rhode Island, and authorized another airline to act as its agent in Rhode Island, for the issuance of tickets, such corporation had sufficient minimum contacts to subject it to suit in Rhode Island. Del Sesto v. Trans World Airlines, Inc., 201 F. Supp. 879, 1962 U.S. Dist. LEXIS 4011 (D.R.I. 1962).

The fact that a syndicated article written by defendant was published in a Rhode Island newspaper, which used a picture of the defendant in advertising the appearance of the syndicated column in the newspaper was not such a “minimum contact” as would permit the bringing of a libel action against the defendant in Rhode Island under this section. Riverhouse Publishing Co. v. Porter, 287 F. Supp. 1, 1968 U.S. Dist. LEXIS 8414 (D.R.I. 1968).

A manufacturing corporation which marketed its products in Rhode Island and other New England states through a Rhode Island corporation serving as a manufacturer’s representative and selling such products and serving as the manufacturer’s agent in all relations between the manufacturer and the purchasers had the necessary minimum contacts required by this section to make it amenable to suit in Rhode Island. Samson Cordage Works v. Wellington Puritan Mills, Inc., 303 F. Supp. 155, 1969 U.S. Dist. LEXIS 13174 (D.R.I. 1969).

A South Carolina manufacturer who marketed its products in Rhode Island by direct mail solicitation and ordering and solicitation by a commission agent with an office in Massachusetts, and made annual sales in such manner in excess of $100,000, had substantial connection with the state of Rhode Island to afford state jurisdiction under this section. Westphal v. Stone Mfg. Co., 305 F. Supp. 1187, 1969 U.S. Dist. LEXIS 13160 (D.R.I. 1969).

Where a defendant hotel located in Florida advertised extensively in Rhode Island and solicited business through travel agencies in Rhode Island and, as a result, plaintiff was induced to go on an advertised tour, for which she contracted in Rhode Island, to the defendant hotel, where she allegedly was injured, defendant maintained the minimum contacts necessary for the purpose of in personam jurisdiction in Rhode Island. Forsythe v. Cohen, 305 F. Supp. 1194, 1969 U.S. Dist. LEXIS 10119 (D.R.I. 1969).

The fact that beneficiaries of a trust live in a state does not give court in personam jurisdiction over the trustee who happens to live outside of the state. Conn v. ITT Aetna Fin. Co., 105 R.I. 397 , 252 A.2d 184, 1969 R.I. LEXIS 770 (1969).

Where the plaintiff was a foreign corporation admitted to do business and having its principal office in Rhode Island, and defendants were located in several other states and were licensed by plaintiff to use certain apparatus and processes for which plaintiff held patents and for which defendants paid royalties to plaintiff, such relationship constituted sufficient minimal contacts to give Rhode Island courts jurisdiction of an action involving such relationship. Leesona Corp. v. Concordia Mfg. Co., 312 F. Supp. 392, 1970 U.S. Dist. LEXIS 12009 (D.R.I. 1970).

Where there was evidence of substantial business activity between the plaintiff and foreign defendant, the exercise of “long arm” jurisdiction was justified, even though the defendant did not hold itself out for business in any identifiable Rhode Island market but rather limited its contacts with Rhode Island to its transactions with the plaintiff. Scott Brass, Inc. v. Wire & Metal Specialties Corp., 344 F. Supp. 711, 1972 U.S. Dist. LEXIS 13357 (D.R.I. 1972).

Where a foreign manufacturer in the ordinary course of business voluntarily, knowingly, and intentionally shipped equipment into the state of Rhode Island, the minimum contacts necessary to exercise in personam jurisdiction were established. Atlantic Tubing & Rubber Co. v. International Engraving Co., 364 F. Supp. 787, 1973 U.S. Dist. LEXIS 11816 (D.R.I. 1973).

The limitations on in personam jurisdiction over a non-resident corporation are twofold, requiring the establishment of “minimum contacts” by the nonresident in accordance with both federal constitutional and state statutory limitations and the Rhode Island long arm statute permits the exercise of jurisdiction over foreign corporations up to the constitutional limit. White v. Shiller Chemicals, Inc., 379 F. Supp. 101, 1974 U.S. Dist. LEXIS 13008 (D.R.I.), aff'd, 503 F.2d 1396 (1st Cir. 1974).

Where defendant practiced as a physician in this state for over three years, enjoying the benefits and protection of Rhode Island law, and the alleged tort arose out of those activities and actually occurred in this state, the defendant had sufficient minimum contacts with Rhode Island to satisfy the requirements of this section. Del Guidice v. Robbins, 410 F. Supp. 303, 1976 U.S. Dist. LEXIS 15884 (D.R.I. 1976).

Massachusetts medical facility that actively solicited Rhode Islanders as patients had requisite minimum contacts with Rhode Island, and “solicitation plus” was unnecessary, given the nature of the facility, to establish Rhode Island’s jurisdiction over it. Soares v. Roberts, 417 F. Supp. 304, 1976 U.S. Dist. LEXIS 14168 (D.R.I. 1976).

In an action brought in Rhode Island against a Massachusetts physician for services performed in Massachusetts, the physician’s status as a nonresident agent of a medical facility which had contacts with Rhode Island was insufficient to establish her own minimum contacts with the forum state. Soares v. Roberts, 417 F. Supp. 304, 1976 U.S. Dist. LEXIS 14168 (D.R.I. 1976).

Only on a case-by-case basis can the sufficiency of the minimum contacts be decided. E. F. Hutton & Co. v. Tourism & Development Corp., 455 F. Supp. 981, 1978 U.S. Dist. LEXIS 16179 (D.R.I. 1978).

Fairness is the central concern in determining the sufficiency of contacts. E. F. Hutton & Co. v. Tourism & Development Corp., 455 F. Supp. 981, 1978 U.S. Dist. LEXIS 16179 (D.R.I. 1978).

Long-arm jurisdiction was available where the direct actual contacts of a Florida banking corporation with Rhode Island consisted of repeated phone calls, correspondence including commitment forms, the cashing of a $55,000 check obtained from Rhode Island and drawn on a Rhode Island bank, a contemplated complex future involvement and extensive interstate loan operations on the part of the Florida bank. E. F. Hutton & Co. v. Tourism & Development Corp., 455 F. Supp. 981, 1978 U.S. Dist. LEXIS 16179 (D.R.I. 1978).

For purposes of determining whether state courts could exercise in personam jurisdiction over a Massachusetts bank, the following circumstances were insufficient to establish minimum contacts between the state and the bank: (1) the bank had Rhode Island customers, (2) a Massachusetts telephone book listing the bank was regularly distributed in Rhode Island, and (3) the bank administered a trust that owned Rhode Island property. Roger Williams Gen. Hosp. v. Fall River Trust Co., 423 A.2d 1384, 1981 R.I. LEXIS 1012 (1981).

Although advertising on a Rhode Island television station clearly demonstrated that a Massachusetts bank intended to solicit the business of Rhode Island residents, the fact that such advertising ceased some four months prior to the events in question was sufficient to terminate the contacts between Rhode Island and the bank for purposes of determining whether state courts could exercise in personam jurisdiction over the bank. Roger Williams Gen. Hosp. v. Fall River Trust Co., 423 A.2d 1384, 1981 R.I. LEXIS 1012 (1981).

A single trip by an executive officer of an out-of-state corporation constituted sufficient contact with Rhode Island so as to enable a federal district court to obtain personal jurisdiction over the corporation without violating its right to due process, where the underlying action was for breach of a contract made during the officer’s trip. Dupont Tire Service Center, Inc. v. North Stonington Auto-Truck Plaza, Inc., 659 F. Supp. 861, 1987 U.S. Dist. LEXIS 3656 (D.R.I. 1987).

A Texas drilling company, named as a defendant in a suit by an injured offshore oil rig worker, lacked sufficient contacts with Rhode Island for jurisdiction in a subsequent indemnity action, even though it had maintained a support office in the state at the time of the injury. Petroleum Services Holdings, Inc. v. Mobil Exploration & Producing Services, Inc., 680 F. Supp. 492, 1988 U.S. Dist. LEXIS 1947 (D.R.I. 1988), aff'd, 887 F.2d 259, 1989 U.S. App. LEXIS 16419 (1st Cir. 1989).

A single act having impact in and connection with the forum state can satisfy the minimum-contact test of International Shoe Co. Ben's Marine Sales v. Sleek Craft Boats, 502 A.2d 808, 1985 R.I. LEXIS 591 (1985).

Where the only communication that could possibly have been sent by the defendant to the plaintiffs was a letter sent in response to the plaintiff ’s initial inquiry, such contact did not fulfill the requirements of this statute. Ben's Marine Sales v. Sleek Craft Boats, 502 A.2d 808, 1985 R.I. LEXIS 591 (1985).

The direct or indirect shipment of goods into the forum by a nonresident defendant with knowledge of their destination is sufficient contact upon which to base jurisdiction where the plaintiff was injured as the result of such shipment, even when that shipment constituted the defendant’s only contact with the forum. Ben's Marine Sales v. Sleek Craft Boats, 502 A.2d 808, 1985 R.I. LEXIS 591 (1985).

A physicians’ participation in a Physicians’ Agreement and Participating Physician Contract manifesting the signing doctors’ agreement to accept Blue Shield or Physicians’ Service payments for services rendered to patient Subscribers of the Blue Shield or Physicians’ Service Plan of Rhode Island, constituted insufficient contact with the State of Rhode Island to permit the invocation of in personam jurisdiction over them. Almeida v. Radovsky, 506 A.2d 1373, 1986 R.I. LEXIS 443 (1986).

The defendants did not maintain, at the time the claim arose, the requisite minimum contact with the State of Rhode Island to allow the Superior Court to exercise personal jurisdiction over them consistent with the requirements of the due-process clause of the Fourteenth Amendment and this section. See Coia v. Stephano, 511 A.2d 980, 1986 R.I. LEXIS 504 (1986).

In a proceeding by a mother for support of herself and her child under the Uniform Reciprocal Enforcement of Support Act, the family court trial justice quite properly ruled that the mother’s prior contacts with Rhode Island some years ago did not endow the family court with jurisdiction to consider the mother’s complaints. Carrillo v. Carrillo, 523 A.2d 439, 1987 R.I. LEXIS 440 (1987).

Where a father’s student days at Brown University occurred before he and the mother separated and the subject matter of this litigation — child-support payments — was being administered by the Wisconsin judicial system, to consider his college years as a basis for asserting personal jurisdiction over unrelated actions arising in the future would make a mockery of the limitations on state jurisdiction imposed by the fourteenth amendment. Carrillo v. Carrillo, 523 A.2d 439, 1987 R.I. LEXIS 440 (1987).

An individual’s contract with an out-of-state party cannot alone establish sufficient minimum contacts in the individual’s home forum. Nicholas v. Buchanan, 806 F.2d 305, 1986 U.S. App. LEXIS 34139 (1st Cir. 1986), cert. denied, 481 U.S. 1071, 107 S. Ct. 2466, 95 L. Ed. 2d 875, 1987 U.S. LEXIS 2330 (1987).

A Rhode Island plaintiff ’s generalized reference to interstate contacts “via telephone communications” and “via U.S. mail”, without more, was insufficient to establish jurisdiction in his action against a Texas defendant for breach of an alleged contract to arrange for the sale of drilling rigs. Nicholas v. Buchanan, 806 F.2d 305, 1986 U.S. App. LEXIS 34139 (1st Cir. 1986), cert. denied, 481 U.S. 1071, 107 S. Ct. 2466, 95 L. Ed. 2d 875, 1987 U.S. LEXIS 2330 (1987).

In personam jurisdiction cannot be exercised over a British corporation in an indemnity action arising out of the sinking of a sailing vessel, where there are no allegations that the corporation ever conducted business in Rhode Island or that it owned or operated the ship during the period pertinent to the suit. American Sail Training Ass'n v. Litchfield, 705 F. Supp. 75, 1989 U.S. Dist. LEXIS 709 (D.R.I. 1989).

A British citizen’s activities in Rhode Island constituted sufficient minimum contacts to establish specific in personam jurisdiction in an indemnity action arising out of the sinking of a sailing vessel, where he had entered the ship in a race through a Rhode Island corporation, opened a local bank account, leased Newport office space, and established a Rhode Island business address. American Sail Training Ass'n v. Litchfield, 705 F. Supp. 75, 1989 U.S. Dist. LEXIS 709 (D.R.I. 1989).

Where foreign corporations allegedly tortiously interfered with a Rhode Island corporation’s business rights arising out of a Rhode Island contract, it is clearly forseeable that such activity would have a direct effect in Rhode Island, and the alleged tortious conduct constitutes the requisite minimum contact for the exercise of specific in personam jurisdiction. Thompson Trading, Ltd. v. Allied Lyons PLC, 124 F.R.D. 534, 1989 U.S. Dist. LEXIS 2411 (D.R.I. 1989).

Rhode Island resident’s purchase in Rhode Island of a ticket for a Florida amusement park is too tenuous to serve as a basis for specific in personam jurisdiction in her tort action against the park for injuries sustained in a slip and fall accident at the park. Russo v. Sea World of Florida, Inc., 709 F. Supp. 39, 1989 U.S. Dist. LEXIS 2870 (D.R.I. 1989).

An unincorporated association which does not itself conduct significant activities in, or enjoy affiliating circumstances with, a state cannot be subject to the general personal jurisdiction of the state’s courts on the basis of a member’s contacts within the state unless the member carries on the in-forum activities under the association’s substantial influence. Donatelli v. National Hockey League, 893 F.2d 459, 1990 U.S. App. LEXIS 393 (1st Cir. 1990).

The National Hockey League, an unincorporated association, has insufficient contacts with Rhode Island to be subjected to personal jurisdiction in a hockey player’s action in a state court to challenge the league’s player draft and its failure to declare him a “free agent.” Donatelli v. National Hockey League, 893 F.2d 459, 1990 U.S. App. LEXIS 393 (1st Cir. 1990).

Bank, which has its principal place of business in the state of Washington, is not subject to in personam jurisdiction of a federal district court, where the bank has never done business in Rhode Island and has no “particular relationship” with a Rhode Island depository bank other than in regard to checks deposited in the latter bank. Congdon v. Jacobson, 131 F.R.D. 35, 1990 U.S. Dist. LEXIS 7151 (D.R.I. 1990).

Letter written by individual defendant did not amount to “continuous and systematic” contacts needed for the exercise of general jurisdiction in a suit against him and other defendants alleging participation in a fraudulent investment scheme. Bridge v. Invest America, Inc., 748 F. Supp. 948, 1990 U.S. Dist. LEXIS 14377 (D.R.I. 1990).

German manufacturer’s 1967 sale and delivery of a machine into Rhode Island was a purposeful act sufficient to satisfy the minimum-contacts requirement, even though the machine was resold to another company before causing a worker’s injury in 1983. McKenney v. Kenyon Piece Dye Works, 582 A.2d 107, 1990 R.I. LEXIS 162 (1990).

Nonresident agents of a California corporation, which is subjected to the jurisdiction of a federal district court in Rhode Island, are not themselves subject to such jurisdiction, where their only contacts with Rhode Island were occasional social visits and telephone calls. Demirs v. Plexicraft, Inc., 754 F. Supp. 250, 1990 U.S. Dist. LEXIS 17788 (D.R.I. 1990).

Subjecting a California corporation to the jurisdiction of a federal district court in Rhode Island in an employee’s action for breach of contract does not offend due process, where the employee worked for the corporation out of his home in Rhode Island for approximately 20 years, the corporation maintained telephone service in Rhode Island, and the corporation paid secretaries who worked for the employee in Rhode Island. Demirs v. Plexicraft, Inc., 754 F. Supp. 250, 1990 U.S. Dist. LEXIS 17788 (D.R.I. 1990).

The Rhode Island Supreme Court’s holding that “defendants had no minimum contacts with the state, and therefore, the superior court could not exercise personal jurisdiction over the defendants” precludes litigation of the issue of minimum contacts in a suit brought in a federal district court, alleging copyright infringement, Lanham Act violations, federal Racketeer Influenced and Corrupt Organizations claims, and state law unfair competition claims. Omni Video Games, Inc. v. Wing Co., 754 F. Supp. 261, 1991 U.S. Dist. LEXIS 1031 (D.R.I. 1991).

Since there is no nationwide service of process in admiralty, Rhode Island’s reach in the area of personal jurisdiction in such cases is governed by this section, and minimum contacts with the state itself are necessary before a party is amenable to service of process. McAleer v. Smith, 818 F. Supp. 486, 1993 U.S. Dist. LEXIS 4732 (D.R.I. 1993), aff'd, 57 F.3d 109, 1995 U.S. App. LEXIS 14932 (1st Cir. 1995).

Property interest held by a mortgage company in property located in Massachusetts was not a contact with Rhode Island and therefore could not provide the basis for Rhode Island’s specific in personam jurisdiction over the mortgage company, even though the mortgage originated in Rhode Island. Barry v. Mortgage Servicing Acquisition Corp., 909 F. Supp. 65, 1995 U.S. Dist. LEXIS 19340 (D.R.I. 1995).

A decedent’s occasional visits to Rhode Island for the purpose of advertising games and recruiting players did not meet the required standard of continuous and systematic contacts necessary to subject his estate to general personal jurisdiction in the state since advertising, even accompanied by the solicitation of orders, provides insufficient minimum contacts for the exercise of such jurisdiction. Morel v. Estate of Davidson, 148 F. Supp. 2d 161, 2001 U.S. Dist. LEXIS 10140 (D.R.I. 2001).

Where a consultant worked from home in Rhode Island for pharmaceutical company with offices in Pennsylvania to save costs, maintained a Boston address as a mail drop, and was presented to the outside world as a company employee, and the core allegations in the instant suit arose mostly out of the Rhode Island activities, for these and other reasons, the district court sitting in Rhode Island had personal jurisdiction over the company. Brian Jackson & Co. v. Eximias Pharm. Corp., 248 F. Supp. 2d 31, 2003 U.S. Dist. LEXIS 3253 (D.R.I. 2003).

The so-called “gestalt” factors include the burden on the defendant, the forum state’s interest in adjudicating the dispute, the plaintiff’s interest in obtaining the most effective resolution of the controversy, and the shared interest of the several states in furthering fundamental substantive social policies; these considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. However, these factors do not even come into play until it has been shown that a defendant has purposefully established minimum contacts with the forum state. Cerberus Partners, L.P. v. Gadsby & Hannah, LLP, 836 A.2d 1113, 2003 R.I. LEXIS 229 (2003).

— Cumulative Effect.

The contention that a single phone call or letter cannot alone satisfy the minimum-contacts requirement falls short since it ignores the cumulative effect of those contacts. Nicholson v. Buehler, 612 A.2d 693, 1992 R.I. LEXIS 175 (1992).

— No In Personam Jurisdiction.

See Union Wadding Co. v. White Swan, 866 F. Supp. 71, 1994 U.S. Dist. LEXIS 15028 (D.R.I. 1994).

Rhode Island superior court erred in its exercise of personal jurisdiction over the Ohio trustee as a nonresident defendant because the beneficiaries did not show that the trustee engaged in the business of administering the trust in Rhode Island nor that their claims against the trustee arose out of its contacts with Rhode Island; thus, the trustee’s conduct and connection with Rhode Island were such that it should not reasonably anticipate being haled into court there. Rose v. Firstar Bank, 819 A.2d 1247, 2003 R.I. LEXIS 68 (2003).

There was no personal jurisdiction as to an out of state law firm where: (1) the firm’s only act within the state was its representation of in-state clients and review of in-state loan agreements; (2) the work handled for Rhode Island clients was transacted outside the state; (3) sending invoices was insufficient to generate minimum contacts; and (4) the inclusion of choice of law provisions in the clients’ loan agreements were not sufficient to confer personal jurisdiction over the law firm. Cerberus Partners, L.P. v. Gadsby & Hannah, LLP, 836 A.2d 1113, 2003 R.I. LEXIS 229 (2003).

Plaintiff in patent infringement action, brought under 35 U.S.C. § 281 et seq., failed to establish general or specific jurisdiction over California defendant, pursuant to R.I. Gen. Laws § 9-5-33 , there was no demonstrable nexus between plaintiff’s infringement claims and defendant’s forum-based activities where the one shipment could not alone support a finding of more than minimum contact within the state or purposeful availment of the privilege of doing business within the state to establish specific jurisdiction and was also insufficient to establish general jurisdiction. Cent. Tools, Inc. v. Chi. Brand Indus., 2004 U.S. Dist. LEXIS 27062 (D.R.I. Apr. 28, 2004).

Trial court did not err in dismissing an employee’s suit against a coworker based on lack of in personam jurisdiction because the coworker’s contacts with Rhode Island were on behalf of the coworker’s employer and were not sufficiently systematic or continuous to warrant an exercise of jurisdiction pursuant to R.I. Gen. Laws § 9-5-33(a) ; the mere fact that the coworker was in Rhode Island to make deliveries in connection with the coworker’s employment was not sufficient to establish specific jurisdiction. Cassidy v. Lonquist Mgmt. Co., 920 A.2d 228, 2007 R.I. LEXIS 45 (2007).

Personal jurisdiction did not exist in Rhode Island when a provider, who was a Rhode Island resident, sought to recover rescinded funds from a client, who was a resident of Florida, and from a bank, which was in Texas. The bank did not have sufficient affiliations with Rhode Island and did not purposefully avail itself of Rhode Island law, while litigation as to the client in Rhode Island would have offended traditional notions of fair play and substantial justice. St. Onge v. USAA Fed. Sav. Bank, 219 A.3d 1278, 2019 R.I. LEXIS 128 (2019).

— Not Found.

Federal district court lacked in personam jurisdiction over National Football League, current NFL commissioner, former NFL commissioner, and 21 NFL member clubs in antitrust action brought by former owner of football team. See Sullivan v. Tagliabue, 785 F. Supp. 1076, 1992 U.S. Dist. LEXIS 2387 (D.R.I. 1992).

In an action to enforce the terms of a collective bargaining agreement, a Rhode Island union failed to allege facts sufficient to support a finding of in personam jurisdiction over a nursing home located in Massachusetts which was neither licensed nor registered to do business in Rhode Island; maintained no telephone listing, office or bank accounts in Rhode Island; had no employees working in Rhode Island; had no real property interests in the state; paid no state taxes; did not have a registered agent for service of process; and did not currently advertise in Rhode Island, even though one of the nursing home’s largest medical supply vendors was located in Rhode Island, some members of the union’s bargaining unit were Rhode Island citizens, and the nursing home may have solicited business from the VA hospital while acting as a contract nursing home or may have solicited patients in Rhode Island. New England Health Care Employees Union, Dist. 1199 v. Fall River Nursing Home, Inc., 802 F. Supp. 674, 1992 U.S. Dist. LEXIS 15542 (D.R.I. 1992).

The mere fact that a company produces and/or ships raw material into this country to a non-Rhode Island destination where it is then incorporated by an independent entity into a product that is in turn shipped by that entity into Rhode Island does not in and of itself constitute sufficient minimum contacts for Rhode Island to exercise personal jurisdiction over the original producer and/or shipper of the raw materials. Anderson v. Metropolitan Life Ins. Co., 694 A.2d 691 (R.I. 1997).

In an employment discrimination action against an employer and the employer’s parent corporation, the parent corporation was not subject to personal jurisdiction in Rhode Island since (1) the plaintiff did not establish that her discrimination claim was at all related to conduct by the parent corporation in Rhode Island, and (2) the plaintiff has failed to establish that the parent corporation engaged in a continuous and systematic course of conduct in Rhode Island and that her claims arose from such contacts. Russell v. Enter. Rent-A-Car Co.of R.I., 160 F. Supp. 2d 239, 2001 U.S. Dist. LEXIS 14166 (D.R.I. 2001).

Rhode Island may not exercise general jurisdiction over a nonresident defendant unless the defendant’s contacts with the state are continuous, purposeful, and systematic. General jurisdiction over an out of state law firm did not exist where: (1) the firm’s only contact with Rhode Island was a website that advertised to clients all over the world and pro hac vice appearances in Rhode Island courts by 10 different lawyers in 6 different cases over a 7 year span; (2) the law firm maintained no office in Rhode Island; (3) it neither owned nor leased property in the state; (4) it maintained no records in the state; (5) it had neither an agent, telephone number, nor a mailbox in the state; (6) none of its attorneys were licensed to practice in Rhode Island; and (7) it did not recruit personnel in Rhode Island. Cerberus Partners, L.P. v. Gadsby & Hannah, LLP, 836 A.2d 1113, 2003 R.I. LEXIS 229 (2003).

Service of Process.

A state boundary is a significant jurisdictional demarcation because if a defendant is found and served within the state minimum contacts need not be established and jurisdiction may be asserted on the basis of the state’s sovereignty. Driver v. Helms, 577 F.2d 147, 1978 U.S. App. LEXIS 10985 (1st Cir. 1978), rev'd, 444 U.S. 527, 100 S. Ct. 774, 63 L. Ed. 2d 1 (1980).

In a tort action by a resident of Rhode Island against a South Carolina corporation, compliance with an order of court directing the manner of service of process on the defendant constituted valid service. Westphal v. Stone Mfg. Co., 305 F. Supp. 1187, 1969 U.S. Dist. LEXIS 13160 (D.R.I. 1969).

Collateral References.

Execution, outside of forum, of guaranty of obligations under contract to be performed within forum state as conferring jurisdiction over nonresident guarantors under “long-arm” statute or rule of forum. 28 A.L.R.5th 664.

Holding directors’, officers’, or stockholders’ or sales meetings or conventions in a state by foreign corporation as subjecting it to service of process. 84 A.L.R.2d 412.

In personam jurisdiction, in libel and slander action, over nonresident who mailed allegedly defamatory letter from outside state. 83 A.L.R.4th 1006.

Ownership or control by foreign corporation of stock of other corporation as constituting doing business within state under statutes providing for service of process. 18 A.L.R.2d 187.

Service on absent nonresident in action for death caused by maritime tort within a state’s territorial waters. 71 A.L.R.2d 1296.

Validity, construction, and application of “fiduciary shield” doctrine — modern cases. 79 A.L.R.5th 587.

Validity of service of process on nonresident owner of watercraft, under state “long-arm” statutes. 99 A.L.R.2d 287.

What constitutes doing business within state by a foreign magazine, newspaper, or other publishing corporation, for purposes other than taxation. 38 A.L.R.2d 747.

9-5-34. Appointment of attorney by foreign corporations.

Every foreign corporation that manufactures products that are sold in the state shall file in the office of the secretary of state a written power appointing some competent person resident in this state as its attorney with authority to accept service of process against the corporation in the state, containing an agreement on the part of the maker that the service of any lawful process in this state on the attorney shall be of the same force and validity as service on the corporation; provided, however, that in case no written power appointing an attorney for service for the foreign corporation is filed, then the secretary of state shall be the attorney for service for the foreign corporation.

History of Section. P.L. 1981, ch. 52, § 1.

Repealed Sections.

The former section (G.L., § 9-5-34 , as enacted by P.L. 1960, ch. 124, § 1), relating to affidavit or admission of service, was repealed by P.L. 1965, ch. 55, § 14.

Cross References.

Appointment of attorney by nonresidents doing business in state, § 9-5-29 .

9-5-35. Service of court papers at work.

No employer within this state is permitted to refuse or obstruct the service of any court process upon an employee at the place of employment and such service shall not be grounds for dismissal of the employee. The employer may designate an area where the service may be effected.

History of Section. P.L. 1985, ch. 89, § 1.

Chapter 6 Pleadings

9-6-1, 9-6-2. Repealed.

History of Section. C.P.A. 1905, § 292; G.L. 1909, ch. 288, § 9; G.L. 1923, ch. 338, § 9; G.L. 1938, ch. 517, § 1; G.L. 1956, §§ 9-6-1 , 9-6-2; Repealed by P.L. 1965, ch. 55, § 15, effective January 10, 1966. For form of complaint on account in superior court see Super. Ct. R. Civ. P. Rules, Form 4. For form of complaint in district court, see Dist. Ct. R. Civ. P. Rules, Form 3-A.

9-6-3. Formal defects to be disregarded.

No summons, writ, complaint, return, process, judgment, or other proceeding in civil causes in any court shall be abated, arrested, quashed, or reversed for any defect or want of form, but the court shall proceed and give judgment according as the right of the cause and matter in law shall appear unto it, without regarding any imperfections, defects, or want of form in the writ, pleading, return, process, judgment, or proceeding whatsoever.

History of Section. C.P.A. 1905, § 260; G.L. 1909, ch. 285, § 3; G.L. 1923, ch. 335, § 3; G.L. 1938, ch. 519, § 1; G.L. 1956, § 9-6-3 .

NOTES TO DECISIONS

Amendments.

Amendments of returns are to be liberally allowed. Goodman v. Turner, 512 A.2d 861, 1986 R.I. LEXIS 518 (1986).

Confession and Avoidance.

A plea of confession and avoidance which does not confess the action which it seeks to avoid is defective in form only. Marchant v. Valley Falls Baptist Church, 6 R.I. 24 (1859).

Erroneous Conclusion of Pleading.

If a replication is faulty in its conclusion by verification rather than to the country, the fault is merely a matter of form and judgment will still be rendered in accordance with the substantive rights of the parties. Ellis v. Appleby, 4 R.I. 462 , 1857 R.I. LEXIS 20 (1857).

Judgments.

A judgment could not be amended, after the term at which it was entered, to correct an error in computation. Richardson v. Hunt, 7 R.I. 543 , 1863 R.I. LEXIS 29 (1863).

Multiplicity of Pleadings.

In a proceeding where there were 31 pleas, to which plaintiff filed demurrers, assigning from ten to 17 reasons for each demurrer, the court observed the spirit of this section by seeking to determine whether there was substantial defense involved without regard to whether the proper form was followed. Probate Court v. Potter, 25 R.I. 204 , 55 A. 524, 1903 R.I. LEXIS 48 (1903).

Omitted Allegations.

In an action of trespass, the mere fact that the pleader omitted to state that the bite of the dog was vi et armis, et contra pacem, would not justify the granting of a motion in arrest of judgment. Barlow v. Tierney, 26 R.I. 557 , 59 A. 930, 1905 R.I. LEXIS 9 (1905).

Plea in Abatement.

Where a plea to the jurisdiction was not lacking in substance, the fact that it did not have all the common law formalities of a plea in abatement was not ground for objection. Kevorko v. Vaitkunas, 54 R.I. 8 , 168 A. 910, 1933 R.I. LEXIS 6 (1933).

The trial justice correctly sustained the defendant’s plea in abatement where the plaintiff tried to make the issuance of the writ serve as the commencement of several different causes of action. Friedman v. Arnold, 73 R.I. 451 , 57 A.2d 444, 1948 R.I. LEXIS 17 (1948).

Replevin Bond.

A replevin bond cannot be regarded as a part of the “process” within the meaning of this section so that such a bond is not amendable under this section. Whitford, Sanders & Co. v. Goodwin, 13 R.I. 145 , 1880 R.I. LEXIS 66 (1880).

A defect in a replevin bond cannot be amended after service of the writ of replevin upon the defendant. Simpson v. Wilcox, 18 R.I. 40 , 25 A. 391, 1892 R.I. LEXIS 6 (1892).

Stipulations.

Where parties submitted case to trial justice to decide on one of several special pleas with unapproved stipulation that defendant could later resubmit general plea, defect was of substance and could not be disregarded. Darman v. Zilch, 63 R.I. 127 , 7 A.2d 699, 1939 R.I. LEXIS 78 (1939).

Surplusage.

In an action on the case based on nuisance, an allegation of negligence contributing to the nuisance may be disregarded as surplusage. Braun v. Iannotti, 54 R.I. 469 , 175 A. 656, 1934 R.I. LEXIS 115 (1934).

Wrong Pleading.

Raising of issues by replication, rather than by amendment of declaration, could be disregarded where the case had been fully tried on the merits. Shepard Land Co. v. Banigan, 36 R.I. 1 , 87 A. 531, 1913 R.I. LEXIS 65 (1913).

9-6-4 — 9-6-8. Repealed.

History of Section. C.P.A. 1905, §§ 285, 287, 301, 302; G.L. 1909, ch. 288, §§ 1, 3, 18, 19; G.L. 1923, ch. 338, §§ 1, 3, 18, 19; G.L. 1938, ch. 520, §§ 1, 3; G.L. 1938, ch. 522, §§ 1, 2; Repealed by P.L. 1965, ch. 55, § 15, effective January 10, 1966. After such date demurrers are not to be used, see Super. Ct. R. Civ. P. Rule 7(c) and District Court Civil Rule 7(d). For method of making objections in superior court, see Super. Ct. R. Civ. P. Rule 12. For method of making objections in district court, see District Court Civil Rule 12.

9-6-9. Truth as defense to libel or slander.

In every action or proceeding, civil or criminal, for libel or slander, the defendant may, with his or her plea of not guilty or his answer, file a written notice that he or she will prove the truth of the publication charged as libelous, or of the words charged as slanderous, and in such case may, upon the trial, give the truth in evidence, without any special plea of justification or affirmative defense in his or her answer; and the truth, unless published or uttered from malicious motives, shall be sufficient defense to the person charged.

History of Section. C.P.A. 1905, § 286; G.L. 1909, ch. 288, § 2; G.L. 1923, ch. 338, § 2; G.L. 1938, ch. 520, § 2; G.L. 1956, § 9-6-9 ; P.L. 1965, ch. 55, § 16.

Cross References.

Constitutional guaranty as to truth as defense, R.I. Const., art. I, § 20 .

NOTES TO DECISIONS

Common-Law Malice.

Although the plaintiff fit the definition of a whore, and despite the fact that the ex-husband had been sorely provoked and misused by the plaintiff in the course of her marital and extramarital relationship with him as well as her unsuccessful litigation in the Family Court to establish a common-law marriage, the trial court was not clearly wrong when it confirmed the finding that the ex-husband, in uttering the defamatory statement, acted out of spite and ill will. Johnson v. Johnson, 654 A.2d 1212, 1995 R.I. LEXIS 45 (1995).

Plea of Truth.

Where truth is pleaded as a defense but not substantiated to the satisfaction of the jury, the jury may regard such plea as an aggravation of the wrong showing actual malice and warranting award of punitive damages. Marley v. Providence Journal Co., 86 R.I. 229 , 134 A.2d 180, 1957 R.I. LEXIS 101 (1957).

Collateral References.

Common report as defense. 43 A.L.R. 887.

Defense of truth in action for defamation based on statement or publication that plaintiff has been indicted or is under indictment. 52 A.L.R.2d 1178.

Free exercise of religion clause of First Amendment as defense to tort liability. 93 A.L.R. Fed. 754.

Malice, may actual malice which will defeat conditional privilege co-exist with belief in truth of imputation. 18 A.L.R. 1160.

Statement Regarding Victim or Accuser of Rape or Other Sexual Misconduct as Defamation. 49 A.L.R.7th Art. 8 (2020).

9-6-10. Repealed.

History of Section. C.P.A. 1905, § 288; G.L. 1909, ch. 288, § 4; G.L. 1923, ch. 338, § 4; G.L. 1938, ch. 520, § 4; G.L. 1956, § 9-6-10 ; Repealed by P.L. 1965, ch. 55, § 15, effective January 10, 1966. For practice after such date in pleading payment or other affirmative defenses in the superior and district courts, see Super. Ct. R. Civ. P. Rule 8(c) and Dist. Ct. R. Civ. P. Rule 8(c).

9-6-11. Substantial performance as defense to action on bond.

Whenever any action shall be brought upon any bond which has a condition of defeasance to make void the bond upon the payment of a less sum at a day or place certain, if the obligor, his or her heirs, executors, or administrators have, before the action brought, paid to the obligee, his or her heirs, executors, or administrators the principal and interest due by the defeasance or condition of the bond, although the payment was not made strictly according to the condition or defeasance, yet it may, nevertheless, be pleaded in defense of the action, and shall be as effectual a bar thereof as if the money had been paid at the day and place, according to the condition or defeasance, and had been so pleaded.

History of Section. C.P.A. 1905, § 289; G.L. 1909, ch. 288, § 5; G.L. 1923, ch. 338, § 5; G.L. 1938, ch. 520, § 5; G.L. 1956, § 9-6-11 ; P.L. 1965, ch. 55, § 16.

Collateral References.

What constitutes action on bond, executed under law of United States, so as to be within Federal District Court’s jurisdiction under 28 USCS § 1352. 105 A.L.R. Fed. 716.

9-6-12, 9-6-13. Repealed.

History of Section. C.P.A. 1905, §§ 290, 291; G.L. 1909, ch. 288, §§ 6, 7; G.L. 1923, ch. 338, §§ 6, 7; G.L. 1938, ch. 520, §§ 6, 7; G.L. 1956, §§ 9-6-12 , 9-6-13; Repealed by P.L. 1965, ch. 55, § 15, effective January 10, 1966. For procedure for offer of judgment, see Super. Ct. R. Civ. P. Rule 68 and Dist. Ct. R. Civ. P. Rule 68.

9-6-14. Tender unimpaired by demand for receipt.

The requirement or demand of a receipt for the amount of lawful money as may be offered or tendered shall not prevent the offer or tender from being regarded or held to be a legal tender.

History of Section. P.L. 1904, ch. 1151, § 1; G.L. 1909, ch. 288, § 8; G.L. 1923, ch. 338, § 8; G.L. 1938, ch. 520, § 8; G.L. 1956, § 9-6-14 .

NOTES TO DECISIONS

Receipt.

Creditor cannot make tender nugatory by offering a receipt from the nature of which an inference could be drawn that debtor had not paid the full amount of the debt. Grieco v. Jackvony, 43 R.I. 26 , 109 A. 801, 1920 R.I. LEXIS 27 (1920).

9-6-15. Pleading of equitable defense in district courts.

In any action at law, pending in a district court, the plaintiff or the defendant may plead any equitable defense, upon which an unconditional judgment can be rendered for the party pleading the defense.

History of Section. C.P.A. 1905, § 242; G.L. 1909, ch. 283, § 22; G.L. 1923, ch. 333, § 22; G.L. 1938, ch. 520, § 9; G.L. 1956, § 9-6-15 ; P.L. 1965, ch. 55, § 16.

Rules of Court.

For method of presenting defenses, see Dist. Ct. R. Civ. P. Rule 12.

NOTES TO DECISIONS

Pleading of Defense.

An equitable defense in an action at law is not admissible under a plea of the general issue but must be set forth by a special plea. Siravo v. Whitman, 51 R.I. 102 , 151 A. 893, 1930 R.I. LEXIS 56 (1930).

Although this section does not permit equitable defenses to be filed to actions at law in the district court a person having an equitable defense to an action in the district could appeal to the superior court and plead his equitable defense in a trial de novo in such court and his failure to do so becomes res judicata and he cannot thereafter obtain equitable relief against such judgment. Poulos v. Cimini, 86 R.I. 401 , 135 A.2d 618, 1957 R.I. LEXIS 117 (1957). (Decision prior to 1965 amendment.)

While it is true under this statute equitable defenses may now be pleaded in actions at law, still if the defense pleaded is insufficient to withstand a demurrer, nothing is gained thereby. DOUGH v. GIFFORDLINE CHEM. CO., 96 R.I. 223 , 190 A.2d 480, 1963 R.I. LEXIS 74 (1963).

Unconditional Judgment.

Defense that plaintiff held property on express trust for defendants could not be pleaded in action at law, since plaintiff would have been entitled to payment for services, so an unconditional judgment could not have been rendered. Siravo v. Whitman, 51 R.I. 102 , 151 A. 893, 1930 R.I. LEXIS 56 (1930).

Plea to reform lease because of oral agreement would not be sustained in action at law since no unconditional judgment could be rendered on the plea. New Eng. Transp. Co. v. Doorley, 60 R.I. 260 , 198 A. 243, 1938 R.I. LEXIS 141 (1938).

Collateral References.

Equitable setoff of claim of one person and claim of his debtor against another. 57 A.L.R. 778; 93 A.L.R. 1164.

9-6-16 — 9-6-23. Repealed.

History of Section. C.P.A. 1905, §§ 293-300; G.L. 1909, ch. 288, §§ 10-17; G.L. 1923, ch. 338, §§ 10-17; P.L. 1929, ch. 1331, § 7; G.L. 1938, ch. 521, §§ 1-8; G.L. 1956, §§ 9-6-16 to 9-6-23; Repealed by P.L. 1965, ch. 55, § 15, effective January 10, 1966. For procedure for counterclaim, see Super. Ct. R. Civ. P. Rule 13 and Dist. Ct. R. Civ. P. Rule 13.

Chapter 7 Judgment on the Pleadings [Repealed.]

9-7-1 — 9-7-5. Repealed.

History of Section. G.L. ch. 333, § 29, as enacted by P.L. 1929, ch. 1343, § 1; P.L. 1930, ch. 1605, § 1; P.L. 1932, ch. 1893, § 1; G.L. 1938, ch. 524, § 1; G.L. 1956, §§ 9-7-1 — 9-7-5; P.L. 1964, ch. 188, § 1; Repealed by P.L. 1965, ch. 55, § 17, effective January 10, 1966. For practice concerning motion for judgment on pleadings, see Super. Ct. R. Civ. P. Rule 12(c) and Dist. Ct. R. Civ. P. Rule 12(c). For practice governing summary judgments, see Super. Ct. R. Civ. P. Rule 56 and Dist. Ct. R. Civ. P. Rule 56.

Chapter 8 Nonsuit and Discontinuance

9-8-1. Repealed.

History of Section. C.P.A. 1905, § 247; G.L. 1909, ch. 283, § 27; G.L. 1923, ch. 333, § 27; G.L. 1938, ch. 523, § 2; G.L. 1956, § 9-8-1 ; P.L. 1965, ch. 55, § 18; Repealed by P.L. 1979, ch. 373, § 2. For related provision on dismissal for lack of prosecution, see § 9-8-3 .

Compiler’s Notes.

Former § 9-8-1 concerned voluntary discontinuance by plaintiff of civil action in the family court.

9-8-2. Repealed.

History of Section. C.P.A. 1905, § 351; G.L. 1909, ch. 291, § 4; G.L. 1923, ch. 341, § 4; G.L. 1938, ch. 523, § 1; G.L. 1956, § 9-8-2 ; Repealed by P.L. 1965, ch. 55, § 20, effective January 10, 1966. For procedure regulating voluntary dismissal of actions in the superior court, see Super. Ct. R. Civ. P. Rule 41(a). For procedure in the district court, see Dist. Ct. R. Civ. P. Rule 41(a).

Compiler’s Notes.

Former § 9-8-2 concerned nonsuit or discontinuance after commencement of trial.

9-8-3. Dismissal for lack of prosecution.

  1. The supreme court, the superior court, the family court, the district court, or the traffic tribunal, may, at any time, in its discretion, dismiss actions at law and other proceedings for lack of prosecution that have been pending for five (5) years or more, after notice and opportunity for hearing.
  2. Notice that an action or proceeding will be in order for dismissal on a day certain shall be given by the moving party (or by the clerk if upon the court’s own motion) by mailing written notice to the attorney of record, or if there is no attorney of record or the attorney is deceased, then to the party if his or her address appears in the papers of the case. In the event there is no attorney of record, or he or she is deceased, and the address of the party is unknown, notice may be given by insertion of a newspaper advertisement published in a daily newspaper that has circulation in the county or district where the action was instituted, at least once. A certificate of the notice given shall be placed in the papers by the clerk.

History of Section. R.P.L. 1957, ch. 125, § 1; P.L. 1979, ch. 373, § 3; P.L. 2017, ch. 66, § 1; P.L. 2017, ch. 71, § 1.

Compiler’s Notes.

P.L. 2017, ch. 66, § 1, and P.L. 2017, ch. 71, § 1 enacted identical amendments to this section.

Rules of Court.

For dismissal for lack of prosecution in district court, see Dist. Ct. Civil Rule 41(b).

For dismissal for lack of prosecution in superior court, see Super. Ct. R. Civ. P. Rule 41(b).

NOTES TO DECISIONS

Malpractice Action.

Where attorneys allegedly committed seven years of omissions as they let an accident suit languish, and at least some of those omissions were covered by an insurance policy, the insurance company owed attorneys a duty to defend against a malpractice action arising out of the dismissal of the suit for failure to prosecute. O'Donnell v. Twin City Fire Ins. Co., 40 F. Supp. 2d 68, 1999 U.S. Dist. LEXIS 3541 (D.R.I. 1999).

Particular Court.

In neither Rule 41(b) of the Superior Court Rules of Civil Procedure nor this section is there any indication that the court may consider only the time during which a case has been pending in that particular court. The language simply allows the justice, in his discretion, to dismiss for lack of prosecution an action that has been pending for five years. Finney Outdoor Advertising Co. v. Cordeiro, 485 A.2d 910, 1984 R.I. LEXIS 650 (1984).

Prejudice.

The trial justice did not abuse his discretion in overruling defendants’ motion to dismiss for lack of prosecution where there was no actual prejudice, all of the parties and key witnesses being available and there being ample evidence corroborated by the testimony of disinterested persons to render a sound and equitable decision. Rodriques v. Santos, 466 A.2d 306, 1983 R.I. LEXIS 1097 (1983).

Collateral References.

What constitutes bringing an action to trial or other activity in case sufficient to avoid dismissal under state statute or court rule requiring such activity within stated time. 32 A.L.R.4th 840.

9-8-4. Dismissal on motion of court — Notice — Hearing.

Actions at law, and such other proceedings as the court may order, which have been pending more than ten (10) years on July 10, 1982, may be dismissed for lack of prosecution by the court on its own motion, as directed by the chief justice of the supreme court as to that court, by the presiding justice of the superior court as to that court, and by the respective chief judges of the district and family courts as to those courts. Notice that the dockets are thus to be cleared of inactive cases and the time and place of hearing upon the court’s motion shall be given by the clerk of the court in a public newspaper circulated in the county or district in which the actions are pending by two (2) publications at least one month before the date of hearing. Any attorney, or party not represented by an attorney, may appear at the time of the hearing to be heard on any such dismissals and the court in its discretion may dismiss the case or stay its dismissal for a period to be fixed by the court, and such period may also be extended.

History of Section. R.P.L. 1957, ch. 125, § 2; P.L. 1982, ch. 135, § 1.

9-8-5. Annual action by court.

  1. Thereafter, during the first week in February in each year, or as soon as thereafter is practicable, all actions at law, and other proceedings designated by the respective courts, deemed by the court to be inactive and then pending in the supreme court, the superior court, the family court, the district court, or the traffic tribunal, for five (5) years or more, may be dismissed for lack of prosecution, without costs. Entries of such dismissals shall be made as of course by the clerk, upon order of the chief justice, presiding justice, chief judges, or chief magistrate, of the respective courts, after notice has been duly given of the date upon which the cases will stand dismissed. The notice shall be given once a week for two (2) successive weeks at least three (3) weeks before the date in a newspaper having general circulation in the county or district where the action is pending.
  2. Upon the date any party desiring to be heard in opposition to dismissal of a case in which he or she appears may appear before the respective court (in the superior court before the presiding justice) and be heard thereon, and the court may in its discretion dismiss or stay dismissal of the case for such period as it may fix. Extensions of the period may also be granted. Any adversary party shall not be thereby prevented from making a special motion for dismissal within the period so fixed or extended.

History of Section. R.P.L. 1957, ch. 125, § 3; P.L. 1979, ch. 373, § 3; P.L. 1982, ch. 135, § 1; P.L. 2017, ch. 66, § 1; P.L. 2017, ch. 71, § 1.

Compiler’s Notes.

P.L. 2017, ch. 66, § 1, and P.L. 2017, ch. 71, § 1 enacted identical amendments to this section.

NOTES TO DECISIONS

Procedural Requirements.

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 (2007).

9-8-6. Reinstatement.

Any case dismissed under §§ 9-8-3 9-8-5 , may be reinstated by the court with or without terms upon motion within one year from dismissal, if the court deems it proper to prevent injustice.

History of Section. R.P.L. 1957, ch. 125, § 4; P.L. 1965, ch. 55, § 19.

Chapter 9 Jury Lists

9-9-1. Persons liable to service — Voting operator’s licenses, Rhode Island identification card, state income tax returns and unemployment compensation as evidence.

  1. A person is liable to serve as a juror if the person is:
    1. A citizen of the United States; and
    2. At least eighteen (18) years of age; and
    3. A resident of Rhode Island who either:
      1. Resides in the county where the person is registered to vote;
      2. Is licensed to operate a motor vehicle within this state; or
      3. Possesses a Rhode Island identification card issued pursuant to the provisions of §§ 3-8-6 and 3-8-6 .1; or
      4. Is an individual filing a state income tax return; or
      5. Is an individual recipient of unemployment compensation.
  2. The list of qualified electors of each town and city as made up by the board of canvassers thereof, at its last meeting prior to the Tuesday after the first Monday in November in each even numbered year, and the duly certified records of the administrator of the division of motor vehicles shall be conclusive evidence of the liability of each person to serve as provided in this chapter, unless in the case of a qualified elector the name of the person has been removed from the list of qualified electors of that town or city on which the name of that person appears prior to being summoned to appear in court as a juror, and except as provided in this chapter. The jury commissioner shall notify the clerk of the board of canvassers and registration of each particular city or town when it appears that a person on a list of qualified jurors does not reside at the address on the list. The board of canvassers and registration, after due notice to the person, shall challenge the listing thereof and after a hearing thereon may remove that person from the list.
  3. The division of motor vehicles shall forward to the jury commissioner the names of licensed drivers and the names of those persons who possess Rhode Island identification cards issued pursuant to the provisions of §§ 3-8-6 and 3-8-6 .1 in the state on a yearly basis.
  4. The division of taxation shall forward to the jury commissioner the names of all individuals who have filed a state income tax return, on a yearly basis.
  5. The department of labor and training shall forward to the jury commissioner the names of all individuals who are receiving unemployment compensation, on a yearly basis.

History of Section. P.L. 1920, ch. 1948, § 1; P.L. 1921, ch. 2037, § 1; G.L. 1923, ch. 329, § 1; P.L. 1926, ch. 797, § 1; P.L. 1928, ch. 1192, § 1; G.L. 1938, ch. 506, § 1; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-9-1 ; P.L. 1972, ch. 55, § 1; P.L. 1975, ch. 233, § 2; P.L. 1979, ch. 121, § 1; P.L. 1979, ch. 373, § 4; P.L. 1980, ch. 242, § 2; P.L. 1980, ch. 406, § 3; P.L. 1980, ch. 412, § 3; P.L. 1983, ch. 75, § 1; P.L. 1995, ch. 71, § 1; P.L. 1997, ch. 326, § 19; P.L. 2003, ch. 430, § 1.

Cross References.

Excuse from service or continuance, § 9-10-9 .

Qualified electors, R.I. Const., art. II, § 1 .

Comparative Legislation.

Juries and jury lists:

Conn. Gen. Stat. § 51-217 et seq.

Mass. Ann. Laws ch. 234, § 1 et seq.

NOTES TO DECISIONS

Age.

A state can constitutionally prescribe specific age qualifications for jury members despite the fact that in doing so an individual may be old enough to vote but too young to sit on a jury. State v. Spivey, 114 R.I. 43 , 328 A.2d 414, 1974 R.I. LEXIS 1059 (1974).

Eligibility for Service.

Persons not meeting the standards set forth in this section are ineligible as jurors, even though the section speaks in terms of liability, rather than qualification for jury service. State v. Davis, 12 R.I. 492 , 1880 R.I. LEXIS 6 (1880).

Juror who was eligible for service at the time he was selected did not lose his eligibility to continue for the time for which selected by loss of property during that time. United States v. Gradwell, 227 F. 243, 1915 U.S. Dist. LEXIS 1067 (D.R.I. 1915).

— Interested Parties.

G.S. 1872, ch. 189, §§ 1 and 2, did not operate to make eligible for jury service persons who are excluded by the common law because of an interest in the suit, so that in an action to recover damages against a city for alleged neglect to keep its streets safe taxpayers in the city were properly excluded from jury service. Watson v. Tripp, 11 R.I. 98 , 1874 R.I. LEXIS 10 (1874).

Pleas in Abatement.

Plea of abatement based on contention that grand juror had not “within the year next preceding the time he was so summoned for service as a grand juror * * * paid a tax” was demurrable for uncertainty since plea did not refer to date of impaneling the jury, the date of actual service as a juror, or the date of the indictment. United States v. Gradwell, 227 F. 243, 1915 U.S. Dist. LEXIS 1067 (D.R.I. 1915); United States v. Scott, 232 F. 192, 1916 U.S. Dist. LEXIS 1637 (D.R.I. 1916).

A plea in abatement which alleged that one of the grand jurors was not qualified to vote was defective since a plea in abatement must contain more specific allegations concerning the reason for disqualification. State v. Duggan, 15 R.I. 412 , 6 A. 597, 1866 R.I. LEXIS 3 (1866).

Presumption of Legality.

It will be presumed that the body responsible for making up the jury lists has acted in accordance with the law. State v. Board of Aldermen, 18 R.I. 381 , 28 A. 347, 1893 R.I. LEXIS 74 (1893) (decided under prior law).

Special Lists.

Additional jury list drawn by town council by special order of justice of common pleas division under G.L. 1896, ch. 227, § 18, should follow and form a part of the list previously drawn for the year and remaining names on first list should be exhausted before jurors are summoned from additional list. State v. Fidler, 23 R.I. 41 , 49 A. 100, 1901 R.I. LEXIS 83 (1901).

Voting Lists.

The general assembly rationally and constitutionally concluded that jurors should be chosen from the lists of registered voters. State v. Romano, 456 A.2d 746, 1983 R.I. LEXIS 809 (1983).

Collateral References.

Effect of, and remedies for, exclusion of eligible class of persons from jury list in civil case. 166 A.L.R. 1422.

Effect of, and remedies for, exclusion of eligible class or classes of persons from jury list in criminal case. 52 A.L.R. 919.

Prejudical effect of juror’s inability to comprehend English. 117 A.L.R.5th 1.

9-9-1.1. Qualifications of jurors.

  1. A person is qualified to serve as a juror if the person is:
    1. A citizen of the United States; and
    2. A resident of Rhode Island who either:
      1. Resides in the county where the person is registered to vote; or
      2. Is licensed to operate a motor vehicle within this state; or
      3. Possesses a Rhode Island identification card issued pursuant to the provisions of §§ 3-8-6 and 3-8-6 .1; or
      4. Is an individual filing a state income tax return; or
      5. Is an individual recipient of unemployment compensation.
    3. At least 18 years of age;
    4. Able to understand and participate in the court proceedings; and
    5. Physically and mentally capable of performing in a reasonable manner the duties of a juror.
  2. No person shall be allowed to serve as a juror if he or she has been lawfully adjudicated to be non compos mentis.
  3. No person convicted of a felony shall be allowed to serve as a juror, until completion of such felon’s sentence, served or suspended, and of parole or probation regardless of a nolo contendere plea.
  4. Notwithstanding subdivisions (a)(4) and (5), a person with a disability shall not be ineligible to serve as a juror solely on the basis of his or her disability, and if that person meets the above requirements, with reasonable accommodations if necessary, he or she shall be deemed a qualified juror.
  5. Nothing in this section shall prevent the court from disqualifying a prospective juror because he or she lacks a faculty or has a disability which will prevent the potential juror from being a competent juror in a particular case.
  6. Nothing in this section shall be construed to limit a party’s right to preemptorially challenge jurors.

History of Section. P.L. 1990, ch. 328, § 1; P.L. 1995, ch. 71, § 1; P.L. 1999, ch. 83, § 8; P.L. 1999, ch. 130, § 8; P.L. 2003, ch. 430, § 1.

Collateral References.

Prejudical effect of juror’s inability to comprehend English. 117 A.L.R.5th 1.

9-9-1.2. Interpreters or readers for jury service.

  1. In any proceeding, civil or criminal, the courts shall provide and pay the reasonable costs of services of a qualified interpreter for persons who are deaf or hard of hearing and a reader for persons who are visually impaired when necessary to enable persons with these disabilities to serve as jurors, when such persons are qualified jurors within the meaning of § 9-9-1.1 .
  2. “Qualified interpreter” for this section means an interpreter for the person who is deaf or hard of hearing skilled in sign language or oral interpretation and transliteration, having the ability to communicate accurately with a person who is deaf or hard of hearing. An interpreter shall be deemed qualified as determined by the commission on the deaf and hard of hearing based upon recommendations from the commission and the deaf and hard of hearing interpreter screening committee, the Rhode Island association of the deaf, the national registry of interpreters for the deaf, and other appropriate agencies. The commission on the deaf and hard of hearing shall coordinate all requests for qualified interpreters and shall maintain a list of all such interpreters from which it shall fill the requests.
  3. “Person who is hard of hearing” for this section means a person who, because of a hearing impairment or deafness, requires sign language and/or speech reading as a part of his or her communication system.

History of Section. P.L. 1990, ch. 328, § 1; P.L. 1991, ch. 150, § 2; P.L. 1999, ch. 83, § 8; P.L. 1999, ch. 130, § 8.

Collateral References.

Right of accused to have evidence or court proceedings interpreted, because accused or other participant in proceedings is not proficient in the language used. 32 A.L.R.5th 149.

9-9-2. Exclusion for race, color, or previous servitude, disability, or gender prohibited.

No citizen, possessing all other qualifications which are or shall be prescribed by law, shall be disqualified for service as a grand or petit juror in any court of this state on account of race, color, or previous condition of servitude, disability, or gender; and any officer or other person, charged with any duty in the selection or summoning of jurors, who shall willfully exclude or fail to select or summon any citizen for any of the causes provided shall, on conviction thereof, be fined not exceeding one thousand dollars ($1,000).

History of Section. P.L. 1920, ch. 1948, § 2; G.L. 1923, ch. 329, § 2; G.L. 1938, ch. 506, § 2; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-9-2 ; P.L. 1991, ch. 149, § 1; P.L. 1991, ch. 323, § 1; P.L. 1999, ch. 83, § 8; P.L. 1999, ch. 130, § 8.

NOTES TO DECISIONS

Burden of Proof.

A black defendant failed to meet his burden of proof on his contention that it would be “unfair” to proceed without at least the possibility of having one black juror on the jury, where he made neither an allegation nor a showing that the jury selection process resulted in the systematic and deliberate exclusion of members of a particular race. State v. Gaines, 528 A.2d 305, 1987 R.I. LEXIS 523 (1987).

Right to Racial Representation.

Presence of members of defendant’s race on a jury is not required by this statute. State v. Clark, 112 R.I. 270 , 308 A.2d 792, 1973 R.I. LEXIS 980 (1973).

The accused does not have a constitutional right to demand that members of his race be on the jury that tries him. State v. DeWitt, 423 A.2d 828, 1980 R.I. LEXIS 1868 (1980).

Collateral References.

Exclusion of eligible class or classes of persons from jury list in criminal case. 52 A.L.R. 919.

Race of defendant, action of administrative state officers excluding all members of, from jury. 98 A.L.R. 411.

9-9-3. Persons exempt from service.

The following persons shall be exempted from serving as jurors, unless such persons shall waive their exemption, namely: the members of congress from the state of Rhode Island, the general officers of the state, the members and officers of the general assembly during their tenure of office irrespective of whether the general assembly is in session or not, the jury commissioner and his or her assistants, the justices of the state and United States courts, clerks of those courts, practicing attorneys-at-law, correctional officers, deputy sheriffs, probation and parole officers, members of any paid police force of the state or of any city or town, members of any paid fire department of any city or town, and members of the armed services on active duty.

History of Section. P.L. 1920, ch. 1948, § 3; P.L. 1922, ch. 2217, § 1; G.L. 1923, ch. 329, § 3; P.L. 1923, ch. 450, § 1; P.L. 1926, ch. 797, § 2; P.L. 1929, ch. 1431, § 1; P.L. 1930, ch. 1516, § 1; P.L. 1930, ch. 1601, § 1; G.L. 1938, ch. 506, § 3; P.L. 1939, ch. 700, § 1; P.L. 1950, ch. 2450, § 1; G.L. 1956, § 9-9-3 ; R.P.L. 1957, ch. 124, § 1; P.L. 1968, ch. 102, § 1; P.L. 1974, ch. 116, § 1; P.L. 1980, ch. 242, § 2; P.L. 1985, ch. 96, § 1; P.L. 2010, ch. 62, § 1; P.L. 2010, ch. 74, § 1; P.L. 2012, ch. 324, § 17.

Cross References.

Merchant marine, extension to, § 30-22-2 .

National guardsmen, exemption, § 30-7-1 .

State police exempt, § 42-28-24 .

NOTES TO DECISIONS

In General.

The 1957 amendment to this section which eliminated provisions extending an option to certain classes of persons to claim exemption from jury service did not establish a new system of drawing grand jurors or require the preparation of new jury lists, and defendant, who was tried and convicted by jury drawn after effective date of amendment was not denied any substantial right because jury was selected from a 1956 list which did not include persons exempted under prior law. State v. Kieon, 89 R.I. 320 , 152 A.2d 531, 1959 R.I. LEXIS 80 (1959).

The present exemptions granted to members of specific occupations do not violate cross-section requirements for jury selection. State v. Courteau, 461 A.2d 1358, 1983 R.I. LEXIS 963 (1983).

Classes Formerly Exempted.

Where jury commissioners excluded “the president, professors, tutors and students of recognized universities and colleges” such grand jury was composed in violation of constitutional requirements. State v. Jenison, 122 R.I. 142 , 405 A.2d 3, 1979 R.I. LEXIS 2142 (1979).

Where college students and professors wishing to be exempted from jury duty could obtain such exemption by affirmatively claiming such status, as opposed to there being an automatic exemption from jury duty for such persons, there was no ground for finding a violation of the fair cross-section requirement of U.S. Const., amend. 6, absent a showing that a cognizable class of persons had been excluded from jury service. State v. Bassett, 447 A.2d 371, 1982 R.I. LEXIS 925 (1982) (decided prior to 1980 amendment to § 9-9-3 , eliminating exemption for college students and professors).

The former exemptions from jury service for college students and professors were reasonable and did not violate the cross-section requirements imposed by the U.S. Const., amend. 6. State v. Courteau, 461 A.2d 1358, 1983 R.I. LEXIS 963 (1983); State v. Conway, 463 A.2d 1319, 1983 R.I. LEXIS 1039 (1983).

Procedure.

Defendants who raise the issue of the absence from a jury of representative of an identifiable segment of the community must prove that the absence is due to a preconceived exclusionary plan by those responsible for the formulation of the jury lists. State v. DeWitt, 423 A.2d 828, 1980 R.I. LEXIS 1868 (1980).

9-9-4. Repealed.

History of Section. P.L. 1920, ch. 1948, § 3; P.L. 1922, ch. 2217, § 1; G.L. 1923, ch. 329, § 3; P.L. 1923, ch. 450, § 1; P.L. 1926, ch. 797, § 2; P.L. 1929, ch. 1431, § 1; P.L. 1930, ch. 1516, § 1; P.L. 1930, ch. 1601, § 1; G.L. 1938, ch. 506, § 3; P.L. 1939, ch. 700, § 1; P.L. 1950, ch. 2450, § 1; G.L. 1956, § 9-9-4 ), was in effect repealed by its omission in the amendment of R.P.L. 1957, ch. 124, § 1.

Compiler’s Notes.

Former § 9-9-4 concerned persons exempt on claim.

9-9-5. Jury commissioner — Term — Appointment and removal.

Whenever a vacancy occurs in the position, whether by expiration of the term of office or otherwise, the presiding justice of the superior court, with the concurrence of a majority of the justices of the court, shall have the power to appoint a jury commissioner who shall be a qualified elector of the state, and who shall serve at the pleasure of the presiding justice and a majority of the justices of the superior court. The jury commissioner’s salary shall be determined and set by the unclassified pay plan board and he or she shall be entitled to the same longevity salary increases as though he or she was in the classified service.

History of Section. G.L. 1938, ch. 506, § 4; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-9-5 ; P.L. 1995, ch. 321, § 1.

9-9-6. Vacancies in office of jury commissioner.

Whenever a vacancy shall occur in the office of jury commissioner, the presiding justice of the superior court, with the concurrence of a majority of the justices of the court, shall appoint a jury commissioner. The person so appointed shall hold office at the pleasure of the presiding justice and the majority of the justices of the court. The salary of the jury commissioner so appointed shall be determined and set by the unclassified pay plan board and he or she shall be entitled to the same longevity salary increases as though he or she was in the classified service.

History of Section. G.L. 1938, ch. 506, § 4; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-9-6 ; P.L. 1976, ch. 281, § 1; P.L. 1995, ch. 321, § 1.

9-9-7. Assistants and expenses of office.

  1. The jury commissioner may, with the consent in writing of the presiding justice, from time to time appoint and remove an associate jury commissioner, an assistant jury commissioner, and such clerks, stenographers, and investigators, and may incur such office and traveling expenses, as shall be necessary for the proper discharge of the duties of his or her office.
  2. The associate jury commissioner and the assistant jury commissioner may discharge all of the duties of the jury commissioner appointing them and an act done by them shall have the same force and effect as though done by the jury commissioner.

History of Section. G.L. 1938, ch. 506, § 4; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-9-7 ; P.L. 1962, ch. 234, § 1; P.L. 1976, ch. 281, § 1.

9-9-8 — 9-9-14. Repealed.

History of Section. P.L. 1920, ch. 1948, §§ 7-9; G.L. 1923, ch. 329, §§ 7-9; P.L. 1926, ch. 797, §§ 6-7; P.L. 1927, ch. 1015, § 2; P.L. 1927, ch. 951, § 2; G.L., ch. 329, § 7, as enacted by P.L. 1928, ch. 1192, § 2; G.L., ch. 329, § 11, as enacted by P.L. 1928, ch. 1192, § 5; P.L. 1928, ch. 1192, §§ 2-4; P.L. 1930, ch. 1609, §§ 1-4; G.L., 1938, ch. 506, §§ 6-9; § 39; G.L., ch. 506, §§ 5-8, 37, as enacted by P.L. 1939, ch. 700, § 1; impl. am. P.L. 1951, ch. 2870, § 18; G.L. 1956, §§ 9-9-8 — 9-9-14; P.L. 1959, ch. 76, § 1; P.L. 1972, ch. 94, § 1; P.L. 1974, ch. 51, § 2; P.L. 1975, ch. 233, § 2; P.L. 1975, ch. 237, § 1; P.L. 1980, ch. 242, § 2; P.L. 1980, ch. 412, §§ 1, 4; Repealed by P.L. 1975, ch. 233, § 1; P.L. 1980, ch. 89, § 1; and P.L. 1992, ch. 13, § 1, effective May 21, 1975, May 8, 1980, and March 31, 1992, respectively.

Compiler’s Notes.

Former §§ 9-9-8 — 9-9-14 concerned jury lists.

9-9-14.1. Selection of jurors by use of electronic data processing equipment.

Notwithstanding any other provisions of this chapter, the jury commissioner may, with approval of the presiding justice of the superior court, select jurors from the registered voters of the several cities and towns as deemed necessary by the jury commission for the several counties of the state by means of the use of electronic data processing equipment, now or hereafter owned or leased by the state of Rhode Island, whenever the secretary of state shall certify to the jury commissioner that the equipment has been furnished with the names of all persons who are registered voters in the cities and towns. In such event, the jury commissioner shall supervise the electronic data processing machine operator in order to carry out the drawing in such a way that neither the jury commissioner nor the operator of the device shall be able to determine any name until the name has actually been drawn. After the drawing has been carried out in accordance herewith, the jury commissioner shall cause the electronic data processing machine operator to have the electronic data processing machine compile a list, by county, randomly mixing the names so drawn. Members of the public and press shall be admitted to the place of electronic data selection, to the extent that space and area may allow.

History of Section. P.L. 1975, ch. 239, § 1; P.L. 1979, ch. 123, § 1; P.L. 1992, ch. 13, § 2.

Repealed Sections.

The former section (G.L. 1956, § 9-9-14.1 as enacted by P.L. 1974, ch. 51, § 1) was repealed by P.L. 1975, ch. 239, § 1.

9-9-14.2. Time of selections.

Whenever jurors are drawn by the use of electronic data processing equipment, in accordance with the provisions of § 9-9-14.1 , the drawing shall take place at such dates and times during the month of March of each year as may be selected by the jury commissioner, with the approval of the presiding justice of the superior court, and drawings may be held at other times throughout the year, if deemed necessary by the jury commissioner and the presiding justice.

History of Section. P.L. 1974, ch. 174, § 1; P.L. 1980, ch. 44, § 1; P.L. 1992, ch. 13, § 2.

9-9-15 — 9-9-21. Repealed.

History of Section. P.L. 1920, ch. 1948, §§ 11-17; G.L. 1923, ch. 329, §§ 11-17; P.L. 1926, ch. 797, § 8; P.L. 1927, ch. 1015, §§ 3, 4; G.L. ch. 329, § 12, as enacted by P.L. 1928, ch. 1192, § 6; P.L. 1928, ch. 1192, §§ 6-8; P.L. 1930, ch. 1609, §§ 5-7; P.L. 1931, ch. 1773, §§ 1-4; G.L. 1938, ch. 506, §§ 10-12, 14-16; G.L. ch. 506, §§ 9-14, as enacted by P.L. 1939, ch. 700, § 1; P.L. 1948, ch. 2138, § 1; P.L. 1949, ch. 2334, § 1; P.L. 1956, ch. 3753, § 1; G.L. 1956, §§ 9-9-15 — 9-9-21; P.L. 1963, ch. 56, § 1; P.L. 1968, ch. 232, § 1; P.L. 1974, ch. 51, § 2); Repealed by P.L. 1992, ch. 13, § 1, effective March 31, 1992.

Compiler’s Notes.

Former §§ 9-9-15 — 9-9-21 concerned jury lists.

9-9-22. Period during which names drawn are liable to service as jurors.

The persons whose names are drawn as provided in §§ 9-9-14.1 and 9-9-14.2 shall be liable to serve as grand or petit jurors commencing at any time during the year beginning July next after the drawing, whenever notified to appear for such service as provided in chapter 10 of this title; and the persons whose names are so drawn at any other such meeting held in accordance with the provisions of § 9-9-14.2 shall be liable to so serve commencing at any time before July following the date of the drawing.

History of Section. P.L. 1920, ch. 1948, § 19; G.L. 1923, ch. 329, § 19; P.L. 1927, ch. 1015, § 6; P.L. 1928, ch. 1192, § 10; G.L. 1938, ch. 506, § 17; G.L., ch. 506, § 15, as enacted by P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-9-22 ; P.L. 1963, ch. 48, § 1; P.L. 1981, ch. 71, § 3; P.L. 1992, ch. 13, § 2; P.L. 1997, ch. 326, § 100.

Cross References.

Proceedings of grand jury, § 12-11-1 et seq.

NOTES TO DECISIONS

Qualifications of Jurors.

Juror who is qualified to serve on grand jury for prescribed period of time does not lose his qualification for service because of loss of property during statutory period. United States v. Gradwell, 227 F. 243, 1915 U.S. Dist. LEXIS 1067 (D.R.I. 1915).

9-9-23. Investigation of names drawn — Lists of persons well qualified to serve.

  1. The jury commissioner, either personally or by such assistant as he or she may employ as provided in § 9-9-7 , shall investigate the names of all persons drawn as provided in § 9-9-14.1 , and as far as possible in the order in which the names appear upon the lists. The investigation may be made by the mailing of questionnaires to such persons, or by other written inquiries deemed by the jury commissioner to be appropriate, but where the jury commissioner considers further investigation to be necessary or desirable, the investigation may include a personal interview by the jury commissioner or by one of his or her duly appointed assistants. The jury commissioner shall make lists of all grand and petit jurors for each town not exempted as provided in § 9-9-3 , and in the order in which they were originally drawn, as he or she shall deem well qualified to serve, being persons of good moral character, of sound judgment, and free from all exception, which lists shall be kept on file in the office of the jury commissioner. The jury commissioner shall preserve a full record of the investigation, which shall not be disclosed to any person except by order of a justice of the superior court, or by order of the chief judge or associate justice of the family court, and may summon before him or her any person subject to serve as a juror, or any person who in the jury commissioner’s opinion has particular knowledge of a juror’s fitness to serve as a juror, and for this purpose may administer oaths, and have the same powers as are by law provided for the summoning of witnesses by a coroner. Any person so summoned shall be entitled to the same fees as a witness summoned before a coroner. No rejection of a juror by the jury commissioner shall take final effect until it has been approved by a justice of the superior court, appointed for this purpose by the presiding justice, and he or she may appoint different justices from time to time for each county. A justice of the family court who has been appointed by the chief judge for the purpose of considering the recommendations of the jury commissioner concerning the fitness of jurors may also reject jurors. The chief judge may appoint different justices from time to time for each county.
  2. The jury commissioner shall not place any person upon the list who is not qualified as provided in § 9-9-1.1 , nor shall he or she fail to place any person upon the list who is qualified, and if the commissioner or any of his or her assistants shall willfully violate any of the provisions of this section they shall be fined not exceeding one thousand dollars ($1,000) or be imprisoned for the term of not more than one year, or both.

History of Section. G.L. 1923, ch. 329, § 20; P.L. 1926, ch. 797, § 10; G.L. 1938, ch. 506, § 18; G.L. 1938, ch. 506, § 16; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-9-23 ; P.L. 1974, ch. 52, § 1; P.L. 1981, ch. 71, § 3; P.L. 1997, ch. 326, § 100.

NOTES TO DECISIONS

Denial of Inspection.

Denial of the motion to inspect the record of the jury commissioner six weeks before the voir dire as untimely was error. State v. Patriarca, 112 R.I. 14 , 308 A.2d 300, 1973 R.I. LEXIS 955 (1973).

Where the defendant had the regular jury list available to both prosecution and defense with the name, address and occupation of potential jurors and there was no showing of unfair advantage to the prosecution, denial of defendant’s motion to inspect the record of the jury commissioner was harmless error. State v. Patriarca, 112 R.I. 14 , 308 A.2d 300, 1973 R.I. LEXIS 955 (1973).

Failure to Request Inspection.

Defendant could not obtain discharge of jury panel on ground that state had been given information respecting jurors which defendant did not have, since defendant did not request such information. State v. Busch, 59 R.I. 382 , 195 A. 487, 1937 R.I. LEXIS 173 (1937).

9-9-24. Appeals from jury commissioner.

Any person aggrieved by the decision of the jury commissioner may, within one year from the time when his or her name was drawn, appeal to the superior court, which sitting without a jury, shall hear and determine the appeal and order that the name be placed upon or withdrawn from the list. Notice of the pendency of the appeal shall be given to the jury commissioner by citation. The decision of any justice of the superior court upon the appeal shall be final.

History of Section. G.L. 1923, ch. 329, § 21; P.L. 1926, ch. 797, § 11; G.L. 1938, ch. 506, § 19; G.L. 1938, ch. 506, § 17; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-9-24 .

9-9-25. Application to pending proceedings.

The provisions of this chapter, of chapter 10 of this title, and of chapter 11 of title 12 shall not affect any suit brought, nor any offense committed, nor any penalty or forfeiture incurred before May 11, 1939, and no prosecution or indictment pending on that date shall be affected hereby, except that all proceedings in any such suit or prosecution and in any suit or prosecution thereafter commenced may be conformed to the provisions hereof.

History of Section. G.L. 1938, ch. 506, § 39; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-9-25 .

9-9-26. Appropriations — Expenses.

The general assembly shall annually appropriate such sums as it shall deem necessary to carry out the provisions of this chapter and chapter 10 of this title; and the state controller is hereby authorized and directed to draw his or her orders upon the general treasurer for the payment of such sum or sums as may be from time to time required, upon the receipt by him or her of proper vouchers approved by the jury commissioner.

History of Section. G.L. 1938, ch. 506, § 40; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-9-26 .

9-9-27. Retention of jury lists.

Lists and records required to be filed and/or preserved in the office of the jury commissioner by the provisions of this chapter may be destroyed upon order of the presiding justice of the superior court when he or she determines their retention is no longer required.

History of Section. P.L. 1963, ch. 49, § 1.

9-9-28. Prohibition against loss of employment or longevity benefits.

No employer doing business within the state of Rhode Island or otherwise subject to the jurisdiction of the state of Rhode Island shall cause any of its employees to suffer the loss of the employee’s position, wage increases, promotions, longevity benefit, or any other emolument due to the employer-employee relationship because the employee has been called to serve jury duty; provided, however, that no employer, in the absence of a contract or collective bargaining agreement to the contrary, shall be responsible to pay to the employee any compensation for the period of the jury duty. In addition to all civil rights available to the employee because of this section, a violation of this section upon conviction shall be punishable as a misdemeanor.

History of Section. P.L. 1975, ch. 186, § 1.

9-9-29. Public transportation.

The jury commissioner shall establish a procedure whereby, upon request, any serving juror shall be allowed the use of the regularly scheduled services of the Rhode Island public transit authority and the Pawtucket-Providence commuter ferry shuttle service and passage upon the Claiborne Pell Bridge free of charge on each day of the juror’s service. A juror requesting these services shall be given a travel voucher valid for use of the services of the Rhode Island public transit authority or the Pawtucket-Providence commuter ferry shuttle service or tokens valid for passage upon the Claiborne Pell Bridge while he or she is serving as a juror.

History of Section. P.L. 1987, ch. 534, § 1; P.L. 2000, ch. 338, § 1.

9-9-30. Promulgation of rules and regulations.

Notwithstanding any other provision of law, the jury commissioner shall, with the approval of the presiding justice of the superior court, promulgate rules and regulations for the efficient operation of the jury system within the counties of the state. Such rules and regulations shall become final after approval by the supreme court and upon filing in the office of the secretary of state, unless otherwise specified at the time of approval by the supreme court.

History of Section. P.L. 1992, ch. 13, § 3.

Chapter 10 Selection of Jury

9-10-1. Notice by court of jurors required — Notifications to sergeants and constables.

From time to time as occasion may require, the superior court or family court shall direct notices to be sent by the clerk thereof to the jury commissioner that there will be required for the county or counties for which the court is held a certain number of grand or petit jurors and the time and place at which they are required to attend. And the jury commissioner, on receiving the notice, shall take from the list of jurors qualified as provided in chapter 9 of this title, in the order in which their names appear on the jury list, so many names as may be required to ensure the attendance of the number of jurors required by the court and shall issue notifications to the city or town sergeant or any certified constable, either in person, or by one of his or her assistants, or by registered or certified mail, and under his or her hand and seal, designating who are grand and petit jurors, and the time and place at which the jurors are required to attend. Upon consent of the town sergeant of the town where any juror resides, the jury commissioner may retain the notifications for service by the jury commissioner or his or her agents.

History of Section. P.L. 1920, ch. 1948, § 20; G.L. 1923, ch. 329, § 20; G.L., ch. 329, § 22, as enacted by P.L. 1926, ch. 797, § 12; P.L. 1927, ch. 1015, § 7; G.L. 1938, ch. 506, § 20; G.L., ch. 506, § 18, as enacted by P.L. 1939, ch. 700, § 1; impl. am. P.L. 1956, ch. 3717, § 1; G.L. 1956, § 9-10-1 ; P.L. 1979, ch. 124, § 1; P.L. 1981, ch. 71, § 2; P.L. 1997, ch. 326, § 20; P.L. 2015, ch. 260, § 10; P.L. 2015, ch. 275, § 10.

Compiler’s Notes.

P.L. 2015, ch. 260, § 10, and P.L. 2015, ch. 275, § 10 enacted identical amendments to this section.

Effective Dates.

P.L. 2015, ch. 260, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

P.L. 2015, ch. 275, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

Cross References.

Application of chapter to proceedings pending in 1939, § 9-9-25 .

Grand jury proceedings, § 12-11-1 et seq.

Sheriffs, duties, § 42-29-1 .

Comparative Legislation.

Selection of jury:

Conn. Gen. Stat. § 51-217 et seq.

Mass. Ann. Laws ch. 234, § 10 et seq.

NOTES TO DECISIONS

Defective Notice.

If a juror appears and thereby waives a defective notification the defect cannot be taken advantage of by the defendant in order to abate the action. State v. Mellor, 13 R.I. 666 , 1882 R.I. LEXIS 66 (1882).

Order of Jurors.

The mere fact that, in the selection of a grand jury, through mistake or accident the prospective jurors were not notified in the precise order in which their names appeared on the list will not vitiate the proceedings of the grand jury. State v. Fidler, 23 R.I. 41 , 49 A. 100, 1901 R.I. LEXIS 83 (1901).

Place of Residence.

Since the jurisdiction of the superior court includes geographically the counties of Providence and Bristol and since the jurisdiction of the grand jury is coextensive with that of the court under whose supervision it is impaneled, it is the court’s opinion that with respect to grand jury proceedings the combined counties are a “county” within the meaning of the declarement of common law where all members of the grand jury must be residents of the county for which they are sworn to inquire. Therefore, there is no merit in defendant’s contention that the statute which authorized the Bristol residents to serve on the instant grand jury is unconstitutional. State v. Edwards, 89 R.I. 378 , 153 A.2d 153, 1959 R.I. LEXIS 96 (1959).

The term “county” is used to define the territorial limits of the jurisdiction of the grand jury, and since it is merely an appendage of the court for which it is summoned and authorized to inquire, its jurisdiction may be made coextensive with that of the court’s jurisdiction and the territory over which such jurisdiction extends and not necessarily confined to the geographical lines of any county. Therefore, it is clear that the legislature by the enactment of G.L. 1938, ch. 506, § 37, now § 12-11-2 , expressly provided that the jurisdiction of the grand jury would be coextensive with that of the court when sitting for those counties. State v. Edwards, 89 R.I. 378 , 153 A.2d 153, 1959 R.I. LEXIS 96 (1959).

Collateral References.

Validity and application of computerized jury selection practice or procedure. 110 A.L.R.5th 329.

9-10-2. Service of notice on jurors.

The city or town sergeant or certified constable, upon receipt of the notification as provided in , shall forthwith make service of the notification upon the persons named therein as jurors by delivering to each of them, or by leaving at their last and usual place of abode, a notice substantially in the following form: § 9-10-1 STATE OF RHODE ISLAND Sc. TO Greeting: You are hereby notified that you have been drawn as a juror for the superior or family court for the county (or counties) of and you are required to attend the said court be holden at on the day of , at o'clock in the forenoon. Sergeant. Constable. The jury commissioner or his or her agents, having retained the notifications in accordance with , shall forthwith serve the notifications in the same form as contained in this section by regular mail. § 9-10-1

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History of Section. P.L. 1920, ch. 1948, §§ 21, 22; G.L. 1923, ch. 329, §§ 21, 22; P.L. 1926, ch. 797, § 12; P.L. 1927, ch. 1015, § 7; G.L. 1938, ch. 506, § 20; G.L., ch. 506, § 18, as enacted by P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-10-2 ; P.L. 1979, ch. 124, § 1; P.L. 1981, ch. 71, § 2; P.L. 1997, ch. 326, § 20; P.L. 2015, ch. 260, § 10; P.L. 2015, ch. 275, § 10; P.L. 2021, ch. 77, § 6, effective June 23, 2021; P.L. 2021, ch. 78, § 6, effective June 23, 2021.

Compiler’s Notes.

P.L. 2015, ch. 260, § 10, and P.L. 2015, ch. 275, § 10 enacted identical amendments to this section.

P.L. 2021, ch. 77, § 6, and P.L. 2021, ch. 78, § 6 enacted identical amendments to this section.

Effective Dates.

P.L. 2015, ch. 260, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

P.L. 2015, ch. 275, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

Cross References.

Forcible entry and detainer, impaneling jurors, § 34-19-1 .

9-10-3. Service of summons by jury commissioner.

Whenever on receipt of a notice from the clerk of the superior or family court for grand or petit jurors it shall appear to the jury commissioner to be impossible to get the returns from the officer or officers who customarily serve the summons in proper time for the commissioner to make his or her returns to the clerk of the court, or upon consent of the town sergeant of the town where any juror resides, in accordance herewith, then the jury commissioner or some person connected with his or her office designated by him or her for such purpose may serve the summons upon any such jurors as have been listed for service at a session of the court; provided, that when any such summons is served by the jury commissioner or person designated by him or her, the town or city in which the service is made shall not be liable for the payment of the fee mentioned in § 9-10-2 .

History of Section. G.L., ch. 329, § 22, as enacted by P.L. 1927, ch. 1015, § 7; G.L. 1938, ch. 506, § 20; G.L., ch. 506, § 18, as enacted by P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-10-3 ; P.L. 1979, ch. 124, § 1; P.L. 1981, ch. 71, § 2.

9-10-4. Return of notifications — Certificate as to investigation of jurors.

The notifications when served shall be returned forthwith by the officer serving them, either in person or by registered or certified mail, to the jury commissioner, who shall make out a list of the persons served, with their names, occupations, and residence appearing thereon and send the list, together with the notification, to the clerk of the court from which the notice came. Upon each list sent, the jury commissioner shall certify that all the names thereon contained are persons who have been investigated by him or her personally, or through his or her assistants, and found in his or her judgment to be persons well qualified to serve as jurors.

History of Section. P.L. 1920, ch. 1948, § 22; G.L. 1923, ch. 329, § 22; P.L. 1926, ch. 797, § 12; P.L. 1927, ch. 1015, § 7; G.L. 1938, ch. 506, § 20; G.L. 1938, ch. 506, § 18; P.L. 1939, ch. 700, § 1; impl. am. P.L. 1956, ch. 3717, § 1; G.L. 1956, § 9-10-4 .

NOTES TO DECISIONS

Effect of Nonreturn.

If the notification to a juror is not returned within the prescribed time, the failure is not a ground for abating the action since this provision was intended for the benefit of the clerk in his preparation of the jury list and is simply directory. State v. Mellor, 13 R.I. 666 , 1882 R.I. LEXIS 66 (1882).

9-10-5. Penalty for failure to serve notice on juror.

Every officer charged with a notification to any person drawn as juror, who shall neglect to serve and return the notification as required in § 9-10-4 , shall for each offense be fined twenty dollars ($20.00).

History of Section. P.L. 1920, ch. 1948, § 23; G.L. 1923, ch. 329, § 23; G.L. 1938, ch. 506, § 21; G.L. 1938, ch. 506, § 19; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-10-5 ; P.L. 1997, ch. 326, § 20.

9-10-6. Service prohibited unless name drawn.

No person shall serve on any grand or petit jury in the courts of this state unless he or she shall have been drawn as hereinbefore provided.

History of Section. P.L. 1920, ch. 1948, § 24; G.L. 1923, ch. 329, § 24; G.L. 1938, ch. 506, § 22; G.L. 1938, ch. 506, § 20; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-10-6 .

9-10-7. Disqualification by prior jury service.

No person summoned shall be qualified to serve as a juror who has served as a juror within three (3) years next preceding the time when he or she shall be so summoned; and the court shall, upon calling the person so summoned, inquire of him or her if he or she has so served.

History of Section. P.L. 1920, ch. 1948, § 25; G.L. 1923, ch. 329, § 25; G.L. 1938, ch. 506, § 23; G.L. 1938, ch. 506, § 21; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-10-7 ; P.L. 2001, ch. 239, § 1; P.L. 2001, ch. 288, § 1.

NOTES TO DECISIONS

Potential Juror Lists.

The fact that an individual is placed on a potential juror list prior to the expiration of the two-year disqualification period provided for in this section is of no consequence in regard to his qualification as a juror when he is actually summoned to serve, and provides no basis for the dismissal of an indictment. State v. Miller, 679 A.2d 867, 1996 R.I. LEXIS 178 (1996).

Collateral References.

Failure of juror to disclose his previous jury service within disqualifying period as ground for reversal. 13 A.L.R.2d 1482.

9-10-8. Period of service of jurors.

No person summoned as a petit juror shall be required to serve more than two (2) weeks in any year in which he or she may be summoned; unless at the expiration of the period of two (2) weeks he or she shall be actually serving on a jury theretofore impaneled to try an issue then pending and undetermined, in which case he or she shall continue to serve until the trial is concluded. Notwithstanding the above provisions, if a juror has been tentatively selected to serve on a jury by the parties litigant and the juror has not been formally sworn and impaneled by the end of the two (2) week period, the trial judge, in his or her discretion, may extend the two (2) week term until the trial is concluded or until the juror is excused. Provided every person summoned as a grand juror shall serve as such in the term for which he or she is summoned for such time or times as the court may require and until a succeeding grand jury shall be called and impaneled as provided by law.

History of Section. P.L. 1920, ch. 1948, § 26; P.L. 1921, ch. 2102, § 1; G.L. 1923, ch. 329, § 26; P.L. 1928, ch. 1204, § 1; G.L. 1938, ch. 506, § 24; G.L. 1938, ch. 506, § 22; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-10-8 ; P.L. 1972, ch. 112, § 1.

Cross References.

Civil service, unclassified service, § 36-4-2 .

Fees of jurors, § 9-29-5 .

Payments for compensation of jurors, § 35-6-14 .

9-10-9. Grounds for excuse from service.

A justice of the superior court or the family court, or the jury commissioner, may excuse a person from jury duty or may continue the date of the service upon a showing of mental or physical disability, illness, or the serious illness of some member of his or her immediate family, economic or domestic hardship, or other good cause; provided, that he or she may be required to serve his or her term or the remainder thereof, as the case may be, on an emergency panel of jurors, if such a panel is deemed necessary by the jury commissioner or the presiding justice of the superior or family court. The discretion to so excuse may be exercised by the appropriate party at any time during the selection or assignment of jurors.

History of Section. P.L. 1920, ch. 1948, § 27; G.L. 1923, ch. 329, § 27; G.L. 1938, ch. 506, § 25; G.L. 1938, ch. 506, § 23; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-10-9 ; P.L. 1980, ch. 242, § 1.

Collateral References.

Consulting preferences of persons eligible for jury service, as regards periods or times of service or character of actions, validity and effect of plan or practice. 112 A.L.R. 995.

9-10-10. Penalty for failure of juror to attend.

Every person duly notified to attend any court as juror, who does not attend as required or give satisfactory excuse to the court for not attending, or shall absent himself/herself therefrom without leave of the court, shall be brought before the court and, upon being adjudged in contempt, shall be fined not less than twenty dollars ($20.00).

History of Section. P.L. 1920, ch. 1948, § 28; G.L. 1923, ch. 329, § 28; G.L. 1938, ch. 506, § 26; G.L. 1938, ch. 506, § 24; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-10-10 .

Cross References.

Bribery, §§ 11-7-1 , 11-7-2 .

Collateral References.

Holding jurors in contempt under state law. 93 A.L.R.5th 493.

9-10-11. Fines levied against jurors.

All fines incurred by jurors and persons returned or notified as jurors under this chapter shall be levied and collected to the use of the state by warrant of distress from the court, directed to the sheriff or his or her deputy of the county in which the person dwells or his or her estate is to be found.

History of Section. P.L. 1920, ch. 1948, § 29; G.L. 1923, ch. 329, § 29; G.L. 1938, ch. 506, § 27; G.L. 1938, ch. 506, § 25; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-10-11 .

Cross References.

Distress warrants, § 10-8-1 .

9-10-11.1. Size of juries in civil cases.

Juries in civil cases shall be composed of six (6) persons and such alternate jurors as may be called pursuant to § 9-10-13 .

History of Section. P.L. 1977, ch. 156, § 1.

9-10-11.2. Qualification and division of petit jury panels.

The presiding justice of the superior court and the chief judge of the family court may assign a justice of those courts or the jury commissioner for the purpose of qualifying petit jurors and dividing the petit jury panels into subpanels. The assigned justice shall order the panel of petit jurors to be divided into two (2) or more subpanels, constituting of not less than twenty-five (25) members each in criminal cases and fifteen (15) members each in civil cases, so that juries may be impaneled from less than the total number summoned in several courtrooms and in civil and criminal cases at the same time; and the assigned justice may thereafter order the consolidation of several subpanels or all of them or may order additions to each of them from other subpanels and may continue, in like manner, as often as he or she shall deem it to be necessary to accomplish the purpose of this section. The subdivision of the panel into subpanels and additions to the subpanels shall be by lot and the names of jurors so drawn by lot shall be placed in a box provided for that purpose.

History of Section. P.L. 1980, ch. 98, § 2.

9-10-12. Drawing and impaneling of trial jury.

On the day when the petit jurors are summoned to attend at a court in any court for the trial of either civil or criminal cases, the clerk shall cause the name and place of abode of each person summoned as a juror to be written upon a separate paper, all of which papers shall be as nearly as may be of the same size, and shall cause them to be placed in a box provided for that purpose. When a case is brought on to be tried, the clerk in open court shall shake the papers thoroughly and shall then draw out twelve (12) papers in criminal cases or six (6) papers in civil cases, one after the other, or such other number as ordered by the court. If any of the persons whose names are so drawn do not appear, or are excused, or are set aside, the clerk shall draw out other papers until the names of an appropriate number of jurors are drawn who appear and are not excused or set aside. The jurors shall be duly sworn and impaneled, and shall be the jury to try the issue, and one of them shall be appointed foreperson by the court. The names of the jurors so sworn shall be kept by themselves and, when the verdict of the jury has been recorded or when the jury has been discharged by consent of parties or by leave of court, shall be returned to the box; and this process shall be repeated in each case when an issue is brought on to be tried by the jury; but if an issue is so brought on before the verdict in any other case has been recorded or the jury in the case has been discharged, the court may order a jury for the trial of such issue to be impaneled by drawing, in the manner provided, of papers from those then remaining in the box.

History of Section. P.L. 1920, ch. 1948, § 36; G.L. 1923, ch. 329, § 36; G.L. 1938, ch. 506, § 34; G.L. 1938, ch. 506, § 32; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-10-12 ; P.L. 1972, ch. 169, § 5; P.L. 1977, ch. 156, § 2.

Collateral References.

Examination and challenge of state case jurors on basis of attitudes toward homosexuality. 80 A.L.R.5th 469.

Exclusion of public and media from voir dire examination of prospective jurors in state criminal case. 16 A.L.R.5th 152.

Stranger’s alleged communication with juror, other than threat of violence, as prejudicial in federal criminal prosecution. 131 A.L.R. Fed. 465.

Threats of violence against juror in criminal trial as ground for mistrial or dismissal of juror. 3 A.L.R.5th 963.

9-10-12.1. Repealed.

History of Section. P.L. 1962, ch. 203, § 1; P.L. 1977, ch. 156, § 2; Repealed by P.L. 1980, ch. 98, § 1.

Compiler’s Notes.

Former § 9-10-12.1 concerned sub-panels.

9-10-12.2. Subpanels in any county.

The provisions of § 9-10-11.2 may be made applicable to any county outside the counties of Providence and Bristol by order of the presiding justice of the superior court whenever he or she shall determine that the expedition of jury trials in that county will be furthered or improved thereby.

History of Section. P.L. 1975, ch. 236, § 1; P.L. 1980, ch. 98, § 3.

9-10-13. Alternate jurors.

Whenever in the opinion of the court the trial of a civil case before a jury is likely to be a protracted one, the court may, immediately after the jury is impaneled and sworn, direct the calling of one or two (2) additional jurors, to be known as alternate jurors. Alternate jurors shall be drawn from the same source, and in the same manner, and have the same qualifications, as regular jurors, and be subject to examination and challenge as such jurors, except that each party shall be allowed one peremptory challenge for each alternate juror. The alternate jurors shall take the proper oath or affirmation and shall be seated near the regular jurors with equal facilities for seeing and hearing the proceedings in the cause and shall attend at all times upon the trial of the cause in company with the regular jurors. They shall obey all orders and admonitions of the court, and if the regular jurors are ordered to be kept in the custody of an officer during the trial of the cause, the alternate jurors shall also be kept with the other jurors and, except as hereinafter provided, shall be discharged upon the final submission of the cause to the jury. If, before the final submission of the cause, a regular juror dies or is discharged, the court shall order the alternate juror, if there is but one, to take his or her place in the jury box. If there are two (2) alternate jurors, the court shall select one by lot, who shall then take his or her place in the jury box. After an alternate juror is in the jury box he or she shall be subject to the same rules as a regular juror.

History of Section. G.L. 1938, ch. 506, § 321/2; P.L. 1940, ch. 936, § 1; G.L. 1956, § 9-10-13 ; P.L. 1972, ch. 169, § 5.

NOTES TO DECISIONS

Protracted Trial.

The trial court did not abuse its discretion in calling two alternate jurors upon the request of the state’s attorney in a prosecution for murder, without making a finding that the trial might be a protracted one. State v. Blood, 70 R.I. 85 , 37 A.2d 452, 1944 R.I. LEXIS 20 (1944).

Collateral References.

Constitutionality and construction of statute or court rule relating to alternate or additional jurors or substitution of jurors during trial. 84 A.L.R.2d 1288.

Propriety of substituting juror in bifurcated state trial after end of first phase and before second phase is given to jury. 89 A.L.R.4th 423.

Propriety, under state statute or court rule, of substituting state trial juror with alternate after case has been submitted to jury. 88 A.L.R.4th 711.

Reversible error in application of statute or court rule relating to alternate or additional jurors or substitution of jurors during trial. 84 A.L.R.2d 1288.

9-10-14. Court examination of prospective jurors.

The court shall, on motion of either party in a suit, examine on oath a person who is called as a juror therein, to know whether he or she is related to either party, has any interest in the cause, or has expressed or formed an opinion or is sensible of any bias or prejudice therein; and the party objecting to the juror may introduce any other competent evidence in support of the objection. The court may permit the parties or their attorneys to conduct the examination of the person called as a juror. If it appears to the court that the juror does not stand indifferent in the cause, another shall be called in his or her stead for the trial of that cause, but at no time shall counsel for either party be precluded from examining prospective jurors.

History of Section. P.L. 1920, ch. 1948, § 37; G.L. 1923, ch. 329, § 37; G.L. 1938, ch. 506, § 35; G.L. 1938, ch. 506, § 33; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-10-14 ; P.L. 1965, ch. 55, § 21; P.L. 1970, ch. 235, § 1.

Rules of Court.

Examination of jurors by parties or attorneys, see Super. Ct. R. Civ. P. Rule 47.

NOTES TO DECISIONS

Bias or Prejudice.

Action of trial court in overruling plaintiff’s challenge of juror who was an employee of majority stockholders of defendant corporation was not an abuse of discretion where trial court determined that the juror was not prejudiced and was qualified. Sansouver v. Glenlyon Dye Works, 28 R.I. 539 , 68 A. 545, 1908 R.I. LEXIS 75 (1908).

Jurors would not be disqualified as a matter of law where only alleged interest was that they were depositors in plaintiff bank and where they declared impartiality. Industrial Trust Co. v. Feuer, 57 R.I. 243 , 189 A. 42, 1937 R.I. LEXIS 91 (1937).

It is the duty of the objecting party to develop on the voir dire examination any showing of bias or prejudice in a juror. Industrial Trust Co. v. Feuer, 57 R.I. 243 , 189 A. 42, 1937 R.I. LEXIS 91 (1937).

Where, after plaintiff’s brother testified, a juror advised the court upon being questioned that he recognized the witness as a bartender whom he had known some years before and was concerned about the propriety of his continuing to serve on the jury, such juror was not thereby shown not to stand indifferent in the cause. Chase v. Dimeo Constr. Co., 100 R.I. 590 , 217 A.2d 922, 1966 R.I. LEXIS 483 (1966).

Where a potential juror in the presence of the prospective jury panel stated on voir dire his opinion about the propensities of defendant’s family to get into trouble with the law, the prejudicial effect of the statement was not cured by a cautionary instruction or by individual examination of the potential jurors, hence defendant was denied his right to trial by an impartial jury. State v. Massey, 119 R.I. 666 , 382 A.2d 801, 1978 R.I. LEXIS 601 (1978).

Defective Hearing.

A juror whose hearing is so defective that he cannot hear material testimony cannot as an impartial juror pass upon the credibility of the witness or the weight to be given his testimony, nor render a fair and impartial verdict solely on the evidence. State v. Berberian, 118 R.I. 413 , 374 A.2d 778, 1977 R.I. LEXIS 1478 (1977).

Interest in Cause.

Trial court did not abuse its discretion in excusing a prospective juror because he was a stockholder in parent or defendant corporation. Davey v. Rhode Island Co., 29 R.I. 49 , 68 A. 946, 1908 R.I. LEXIS 8 (1908).

Oath.

In considering the pertinent provision of this section providing that the prospective jurors be put under oath for the voir dire examination, obviously the legislature intended to compel them to testify truthfully as to matters which would require their excuse for cause or their removal by peremptory challenge; therefore, such provision relative to the administration of oath to prospective jurors was mandatory when applied for by a party as provided in the act. State v. Kieon, 89 R.I. 320 , 152 A.2d 531, 1959 R.I. LEXIS 80 (1959).

In the case of a prospective juror who for reasons of conscience objects to giving oath, compliance with the statutory provisions may be had if such juror is permitted to affirm. State v. Kieon, 89 R.I. 320 , 152 A.2d 531, 1959 R.I. LEXIS 80 (1959).

Relation to Party.

It was not an abuse of discretion for trial court to refuse a motion for a new trial on the ground one of the jurors was not indifferent to the cause merely because of a short conversation between juror and husband of plaintiff or because the relationship of second cousin existed to the husband when affidavits were filed showing no friendly or social relationship existed between juror and plaintiff or plaintiff’s husband. Hathaway v. Reynolds, 44 R.I. 239 , 116 A. 659, 1922 R.I. LEXIS 29 (1922).

Collateral References.

Accused as witness in his own behalf, right to interrogate juror on voir dire as to prejudice against. 99 A.L.R.2d 7.

Attorney: juror’s voir dire denial or nondisclosure of acquaintenance or relationship with attorney in case, or with partner or associate of such attorney, as ground for new trial or mistrial. 64 A.L.R.3d 126.

Betting on result as disqualifying juror. 2 A.L.R. 813.

Bias, prejudice, or conduct of individual member or members of jury panel as ground for challenge to array or to entire panel. 76 A.L.R.2d 678.

Capital punishment: comment note on beliefs regarding capital punishment as disqualifying juror in capital case — post-Witherspoon cases. 39 A.L.R.3d 550.

Class, membership in which may be supposed to involve bias or prejudice, power of court to exclude all persons belonging to, from panel or venire for particular case. 105 A.L.R. 1526.

Claustrophobia or other neurosis of juror as subject of inquiry on voir dire or of disqualification of juror. 20 A.L.R.3d 1420.

Competency of juror as affected by his participation in a case of similar character, but not involving the party making the objection. 160 A.L.R. 753.

Contributing to fund for prosecution as disqualifying juror. 1 A.L.R. 519.

Counsel’s use on voir dire examination, in relation to damages in personal injury or wrongful death case, of blackboard, chart, diagram, or placard not introduced in evidence. 86 A.L.R.2d 241.

Deafness of juror as ground for impeaching verdict, or securing new trial or reversal on appeal. 38 A.L.R.4th 1170.

Defense, prejudice against certain type of, as ground for challenge for cause of juror in criminal case. 112 A.L.R. 531.

Disqualification as juror of employee of client of attorney in case.

Disqualification as juror of member of organization which is client of attorney in case.

Disqualification, as jurors, of residents or taxpayers of litigating political subdivision, in absence of specific controlling statute. 81 A.L.R.2d 708.

Disqualification of juror who is relative of client of attorney in case.

Disqualification or exemption of juror for conviction of, or prosecution for, criminal offense. 75 A.L.R.5th 295.

Dissolution of marriage as affecting disqualifying relationship by affinity in case of jury. 117 A.L.R. 800.

Economic prejudice of proposed juror as ground of challenge on voir dire in civil case. 72 A.L.R.2d 913.

Economic prejudice of proposed juror as ground of challenge on voir dire in criminal case. 54 A.L.R.2d 1220.

Exclusion of public and media from voir dire examination of prospective jurors in state criminal case. 16 A.L.R.5th 152.

Extrinsic evidence in support of challenge to juror for cause, right to introduce. 65 A.L.R. 1056.

Former jeopardy where jury discharged because of relationship of juror. 28 A.L.R. 711.

Former law enforcement officers as qualified jurors in criminal cases. 72 A.L.R.3d 958.

Implied bias or interest because of relationship to one who would be subject to challenge for that reason, challenge of proposed juror for. 86 A.L.R. 118.

Indoctrination by court of persons summoned for jury service. 89 A.L.R.2d 197.

Insurance company, prospective juror’s connection with, as ground for challenge for cause in action for personal injuries or damage to property. 103 A.L.R. 511.

Intoxicating liquors, service on jury in prosecution for selling, as disqualification as juror in similar case. 3 A.L.R. 1206.

Juror’s previous knowledge of facts of civil case as disqualification. 73 A.L.R.2d 1312.

Juror’s relationship to witness in civil case as ground of disqualification. 85 A.L.R.2d 851.

Law enforcement officers as qualified jurors in criminal cases. 72 A.L.R.3d 895.

Membership in co-operative association interested in the case as affecting. 69 A.L.R.3d 1296.

Membership in racially biased or prejudiced organization as proper subject of voir dire inquiry or ground for challenge. 63 A.L.R.3d 1052.

Personal injury or death action, questions to jury in, as to interest in, or connection with indemnity insurance company. 56 A.L.R. 1454; 74 A.L.R. 849; 95 A.L.R. 388; 105 A.L.R. 1319; 4 A.L.R.2d 761.

Prejudice of proposed juror against intoxicants and gambling as ground of challenge on voir dire in criminal case. 54 A.L.R.2d 1221.

Prejudice of proposed jurors against intoxicants as ground of challenge on voir dire in civil case. 72 A.L.R.2d 917.

Prejudicial effect of reference, on voir dire examination of jurors, to settlement efforts or negotiations. 67 A.L.R.2d 560.

Presence of judge: necessity for presence of judge during voir dire examination of prospective jurors in state criminal case. 39 A.L.R.4th 465.

Presumption of innocence or rule as to reasonable doubt, failure to understand or unwillingness to accept, as rendering jury incompetent. 40 A.L.R. 612.

Previous claims for damages: effect of juror’s false or erroneous answer on voir dire in personal injury or death action as to previous claims or actions for damages by himself or his family. 38 A.L.R.4th 267.

Prior conviction: propriety, on voir dire in criminal case, of inquiries as to juror’s possible prejudice if informed of defendant’s prior convictions. 43 A.L.R.3d 1081.

Professional or business relations between proposed juror and attorney as ground for challenge for cause. 52 A.L.R.4th 964.

Propriety and effect of asking hypothetical questions, on voir dire, to determine whether prospective juror is prejudicial for or against certain witness or class of witnesses. 99 A.L.R.2d 59.

Propriety and effect of asking prospective jurors hypothetical questions, on voir dire, as to how they would decide issues of case. 99 A.L.R.2d 7.

Propriety of asking prospective female jurors questions on voir dire not asked of prospective male jurors, or vice versa. 39 A.L.R.4th 450.

Propriety of inquiry on voir dire as to juror’s attitude toward, or acquaintance with literature dealing with amount of damage awards. 63 A.L.R.5th 285.

Prosecuting information: right of defense in criminal prosecution to disclosure of prosecution information regarding prospective jurors. 86 A.L.R.3d 571.

Prosecution or witness for prosecution, relationship to, as disqualifying juror in criminal case. 18 A.L.R. 375.

Prospective juror’s connection with insurance company as ground for challenge for cause. 9 A.L.R.5th 102.

Racial or ethnic prejudice of prospective jurors as proper subject of inquiry or ground of challenge on voir dire in state criminal case. 94 A.L.R.3d 15.

Racial, religious, economic, social or political prejudice of proposed juror as ground for challenge on voir dire in criminal case.

Racial, religious, economic, social, or political prejudice of proposed juror as ground of challenge on voir dire in civil case.

Racial, religious, social, or political prejudice of proposed juror as proper subject of inquiry or ground of challenge on voir dire in criminal cases. 54 A.L.R.2d 1204.

Relationship to one financially affected by offense charged as disqualifying juror. 63 A.L.R. 183.

Religious belief, affiliation, or prejudice of prospective juror as proper subject of inquiry or ground for challenge on voir dire. 95 A.L.R.3d 172.

Religious belief as ground for exemption or excuse from jury service. 2 A.L.R.3d 1392.

Right of counsel in criminal case personally to conduct the voir dire examination of prospective jurors. 73 A.L.R.2d 1187.

Right to challenge for cause as prejudiced by appearance of additional counsel in civil cases after impaneling of jury. 56 A.L.R.2d 971.

Same defendant: juror’s presence at or participation in trial of criminal case (or related hearing) as ground of disqualification in subsequent criminal case involving same defendant. 6 A.L.R.3d 519.

Secret order or organization for suppression of crime, membership in, as ground for challenge of juror. 31 A.L.R. 411; 158 A.L.R. 1361.

Social or business relationship between proposed juror and nonparty witness as affecting former’s qualification as juror. 11 A.L.R.3d 859.

Social prejudice arising from membership in society or organization as ground of challenge on voir dire in civil case. 72 A.L.R. 915.

Statutory grounds for challenge of jurors for cause as exclusive of common law grounds. 64 A.L.R. 645.

Stranger’s alleged communication with juror, other than threat of violence, as prejudicial in federal criminal prosecution. 131 A.L.R. Fed. 465.

Threats of violence against juror in criminal trial as ground for mistrial or dismissal of juror. 3 A.L.R.5th 963.

Use of peremptory challenges to exclude persons from criminal jury based on religious affiliation — Post-Batson state cases. 63 A.L.R.5th 375.

Validity of jury selection as affected by accused’s absence from conducting of procedures for selection and impaneling of final jury panel for specific case. 33 A.L.R.4th 429.

Witness, right to interrogate juror on voir dire as to prejudice for or against particular class of witness. 99 A.L.R.2d 7.

9-10-15. Residence or tax payment in town not ground for challenge.

In complaints, indictments, and penal actions for the recovery of any sum of money or other thing forfeited, it shall not be cause for challenge to a juror that he or she resides or is liable to pay taxes in any town which may be benefited thereby.

History of Section. P.L. 1920, ch. 1948, § 32; G.L. 1923, ch. 329, § 32; G.L. 1938, ch. 506, § 30; G.L. 1938, ch. 506, § 28; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-10-15 .

9-10-16. State citizenship not ground for challenge.

No person shall be disqualified to act as a juror in any case in which the state is directly or indirectly a party by reason of his or her being a citizen thereof.

History of Section. P.L. 1920, ch. 1948, § 35; G.L. 1923, ch. 329, § 35; G.L. 1938, ch. 506, § 33; G.L. 1938, ch. 506, § 31; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-10-16 .

9-10-17. Waiver of objection to juror by silence.

If a party knows of any objection to a juror before the case is opened to the jury and omits to suggest it to the court, he or she shall not afterwards make the objection, unless by express leave of the court.

History of Section. C.P.A. 1905, § 348; G.L. 1909, ch. 291, § 1; G.L. 1923, ch. 341, § 1; G.L. 1938, ch. 507, § 1; G.L. 1956, § 9-10-17 .

NOTES TO DECISIONS

In General.

It is generally held that a party who knows or by the exercise of reasonable diligence on the voir dire examination should have known of a juror’s disqualification waives the right to object thereto by waiting to raise the objection until after the verdict. State v. Berberian, 118 R.I. 413 , 374 A.2d 778, 1977 R.I. LEXIS 1478 (1977).

Trial court did not err in denying a motion for a change of venue or venire because no objection was raised regarding the ability of the jury to hear the case after the jury had been sworn. Berman v. Sitrin, 101 A.3d 1251, 2014 R.I. LEXIS 137 (2014).

Defective Hearing.

Where there was no negligence on the part of defendant in failing to discover the juror’s hearing impediment prior to the verdict, the court found that defendant did not waive his objection. State v. Berberian, 118 R.I. 413 , 374 A.2d 778, 1977 R.I. LEXIS 1478 (1977).

9-10-18. Peremptory challenges.

Either party in a civil action may, before the opening of the action or proceeding to the jury, challenge in writing, addressed to the clerk of the court, any qualified jurors called for the trial of the cause or proceeding, not exceeding one in three (3), without alleging or showing any cause therefor; and after the objection the challenged jurors shall not sit in the trial of the cause, but other jurors shall be called to take the place of the challenged jurors for the trial of the cause.

History of Section. C.P.A. 1905, § 349; G.L. 1909, ch. 291, § 2; G.L. 1923, ch. 341, § 2; G.L. 1938, ch. 507, § 2; G.L. 1956, § 9-10-18 ; P.L. 1972, ch. 169, § 5; P.L. 1977, ch. 156, § 2.

Cross References.

Criminal cases, § 12-17-2 .

NOTES TO DECISIONS

Challenges During Impaneling.

Peremptory challenge of jurors during impaneling was properly allowed in a civil action. Graves v. Horgan, 21 R.I. 493 , 45 A. 152, 1899 R.I. LEXIS 121 (1899).

Co-Defendants.

Where there is more than one defendant, the defendants collectively are considered the “party.” State v. Sutton, 10 R.I. 159 , 1872 R.I. LEXIS 4 (1872); State v. Brown, 45 R.I. 9 , 119 A. 324, 1923 R.I. LEXIS 8 (1923).

Defendant was in no way prejudiced by reason of the refusal of the court to grant him a separate trial even though such ruling might reduce the number of peremptory challenges available to him. State v. Ballou, 20 R.I. 607 , 40 A. 861, 1898 R.I. LEXIS 142 (1898), overruled, In re Doe, 120 R.I. 732 , 390 A.2d 920, 1978 R.I. LEXIS 722 (1978).

Where there was more than one defendant, the trial court did not err in considering them collectively as the party with regard to peremptory challenges. State v. Patriarca, 112 R.I. 14 , 308 A.2d 300, 1973 R.I. LEXIS 955 (1973).

The consideration of several defendants as one party for the purpose of peremptory challenges in jury selection does not violate the equal protection clause of the 14th Amendment of the United States Constitution because the classification which treats several defendants tried jointly the same as one defendant tried alone was not shown to be either irrational or irrelevant to a legitimate state purpose. State v. Lerner, 112 R.I. 62 , 308 A.2d 324, 1973 R.I. LEXIS 957 (1973).

Prejudice of Jury.

Defendant could not get new trial on ground that it was impossible for him to receive a fair trial in the county of the murder due to public opinion and juror prejudice where he examined each juror as to prejudice and yet did not use all of his peremptory challenges and where the jurors were not allowed to separate and heard nothing of the case outside the courtroom. State v. Hathaway, 52 R.I. 492 , 161 A. 366, 1932 R.I. LEXIS 96 (1932).

Privilege Granted by Section.

This statute gave defendant privilege of saying he should not be tried by some particular jurors but it did not give him the right to select the jurors who were to try him. State v. Hathaway, 52 R.I. 492 , 161 A. 366, 1932 R.I. LEXIS 96 (1932).

Qualified Jurors.

The words “qualified jurors” refer to the jurors who are not subject to challenge for cause. Stevens v. Union R.R., 26 R.I. 90 , 58 A. 492, 1904 R.I. LEXIS 32 (1904).

Collateral References.

Allowance of, or refusal to allow, peremptory challenge after acceptance of jury. 3 A.L.R.2d 499.

Effect of allowing excessive number of peremptory challenges. 95 A.L.R.2d 957.

Effect, on challenges, of substitution of juror during trial. 84 A.L.R.2d 1317.

Jury: number of peremptory challenges allowed in criminal case, where there are two or more defendants tried together. 21 A.L.R.3d 725.

Multiple charges: additional peremptory challenges because of multiple criminal charges. 5 A.L.R.4th 533.

Nature of offense or extent of punishment: validity and construction of statute or court rule prescribing number of peremptory challenges in criminal cases according to nature of offense or extent of punishment. 8 A.L.R.4th 149.

Right to peremptory challenge as prejudiced by appearance of additional counsel in civil case after impaneling of jury. 56 A.L.R.2d 971.

Right to peremptory challenges in selection of jury to try issue of former conviction. 162 A.L.R. 429.

Use of peremptory challenges to exclude ethnic and racial groups, other than black Americans, from criminal jury—post-Batson state cases. 20 A.L.R.5th 398.

Use of peremptory challenges to exclude persons from criminal jury based on religious affiliation — Post-Batson state cases. 63 A.L.R.5th 375.

Waiver of peremptory challenge in civil case other than by acceptance of juror. 56 A.L.R.2d 742.

9-10-19. Keeping and disposition of peremptory challenges.

Written objections or challenges, filed under the provisions of § 9-10-18 , shall be kept in such place and shall be disposed of in such manner, as the court shall direct.

History of Section. C.P.A. 1905, § 350; G.L. 1909, ch. 291, § 3; G.L. 1923, ch. 341, § 3; G.L. 1938, ch. 507, § 3; G.L. 1956, § 9-10-19 .

9-10-20. Oaths of jurors.

Grand and petit jurors, before acting as such, shall take the oath prescribed for them in the following terms: GRAND JURORS OATH “You severally and solemnly swear (or, affirm) that as members of the grand inquest for the body of the county (or counties) of you will diligently inquire and true presentment make of all such crimes and misdemeanors cognizable by this court as shall come to your knowledge: the state's council, your fellow's and your own, will keep secret: will present no person for envy, hatred or malice: neither will you leave any person unpresented for love, fear, favor, affection or hope of reward: but you will present things truly, as they come to your knowledge, according to the best of your understanding: So help you God. (Or: This affirmation you make and give upon peril of the penalty of perjury.)” PETIT JURORS OATH IN CRIMINAL CASES “You swear (or, affirm) that you will well and truly try and true deliverance make between the state of Rhode Island and the prisoner (or, defendant) at the bar according to law and the evidence given you: So help you God. (Or: This affirmation you make and give upon peril of the penalty of perjury.)” PETIT JURORS OATH IN CIVIL CASES “You swear (or, affirm) that in all cases between party and party, that shall be committed to you, you will give a true verdict therein, according to law and the evidence given you: So help you God. (Or: This affirmation you make and give upon peril of the penalty of perjury.)”

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History of Section. P.L. 1920, ch. 1948, § 33; G.L. 1923, ch. 329, § 33; G.L. 1938, ch. 506, § 31; G.L. 1938, ch. 506, § 29; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-10-20 ; P.L. 2021, ch. 77, § 6, effective June 23, 2021; P.L. 2021, ch. 78, § 6, effective June 23, 2021.

Compiler's Notes.

P.L. 2021, ch. 77, § 6, and P.L. 2021, ch. 78, § 6 enacted identical amendments to this section.

Cross References.

Forcible entry and detainer, oath of jurors, § 34-19-4 .

Collateral References.

Officer, member of petit jury as, within constitutional or statutory provisions in relation to oath or affirmation. 118 A.L.R. 1098.

9-10-21. Exemption of juror from process.

The person and estate of every juror attending any court in this state shall be exempt from all process in any civil action during the period of his or her attendance on the court and for three (3) days next before the time he or she shall be required to appear and for the three (3) days next after he or she shall be discharged.

History of Section. P.L. 1920, ch. 1948, § 30; G.L. 1923, ch. 329, § 30; G.L. 1938, ch. 506, § 28; G.L. 1938, ch. 506, § 26; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-10-21 .

9-10-22. Service of forbidden process void.

The service of all process contrary to § 9-10-21 shall be void.

History of Section. P.L. 1920, ch. 1948, § 31; G.L. 1923, ch. 329, § 31; G.L. 1938, ch. 506, § 29; G.L. 1938, ch. 506, § 27; P.L. 1939, ch. 700, § 1; G.L. 1956, § 9-10-22 .

Chapter 11 Superior Court Practice

9-11-1 — 9-11-6. Repealed.

History of Section. C.P.A. 1905, §§ 277 to 281, 283; G.L. 1909, ch. 287, §§ 1-5, 7; G.L. 1923, ch. 337, §§ 1-5, 7; G.L. 1938, ch. 526, §§ 1-5, 7; G.L. 1956, §§ 9-11-1 — 9-11-6; Repealed by P.L. 1965, ch. 55, § 23, effective January 10, 1966. A substantial part of the procedure of a civil nature in the superior court is now governed by the Rules of Civil Procedure and Practice for the Superior Court contained in Volume 2B.

9-11-7. Trials without jury.

In every action at law originally brought in the superior court or removed to the superior court on appeal from a district court, if neither party claims a jury trial in accordance with applicable procedural rules, then jury trial as of right shall be deemed to be waived in the case and trial shall be had in such form as the court shall determine in accordance with applicable procedural rules.

History of Section. C.P.A. 1905, § 282; G.L. 1909, ch. 287, § 6; G.L. 1923, ch. 337, § 6; P.L. 1929, ch. 1327, § 1; G.L. 1938, ch. 526, § 6; G.L. 1956, § 9-11-7 ; P.L. 1965, ch. 55, § 22.

Rules of Court.

For demand for jury trial, see Super. Ct. R. Civ. P. Rule 38(b).

Cross References.

Instructions to jury, § 8-2-38 .

Comparative Legislation.

Claim of jury trial:

Conn. Gen. Stat. § 52-215.

Mass. Ann. Laws ch. 231, § 60.

NOTES TO DECISIONS

Constitutionality.

The requirement that jury trial be demanded before assignment day does not deprive the parties of the right to trial by jury, even though the issues may not have been closed before that time. Mandeville, Brooks & Chaffee v. Fritz, 50 R.I. 513 , 149 A. 859, 1930 R.I. LEXIS 30 (1930).

The conditions prescribed by this section have been held reasonable and not amounting to a deprivation of the right to jury trial since the section merely provided that the right was deemed waived if neither party filed a written claim for a jury trial before the assignment of the case. Dyer v. Keefe, 97 R.I. 418 , 198 A.2d 159, 1964 R.I. LEXIS 102 (1964).

Application to Pending Suit.

The 1929 amendment of this section applied to cases pending but not yet assigned on its effective date. Houle v. Lussier, 50 R.I. 339 , 147 A. 756, 1929 R.I. LEXIS 72 (1929).

Consolidation of Cases.

Case assigned to jury trial calendar could not be consolidated with other cases assigned for hearing before justice alone, even though arising under same facts. Hutson v. Cavicchia, 53 R.I. 518 , 167 A. 531, 1933 R.I. LEXIS 133 (1933).

Demand for Jury Trial.
— Manner of Demanding.

A conclusion to the country in a plea does not comply with the requirement of a jury trial request, particularly where superseded by a later pleading filed after the assignment day. Orr v. Superior Court, 52 R.I. 335 , 161 A. 139, 1932 R.I. LEXIS 79 (1932).

Although in a case certified from district to superior court, a written claim for jury should be filed with clerk of later court, the requirement is satisfied if such claim is filed with district court clerk and transmitted with other papers to superior court clerk and received before assignment day. Agnew v. Max, 57 R.I. 452 , 190 A. 436, 1937 R.I. LEXIS 109 (1937).

Mere statement in prayer of petition “That a jury assess the damage suffered by petitioner” was not so distinct and certain as to constitute a claim for trial by jury. Atlantic Ref. Co. v. Director of Pub. Works, 98 R.I. 167 , 200 A.2d 580, 1964 R.I. LEXIS 146 (1964).

— Motion for Summary Judgment.

Defendant’s claim for jury trial within time limited by this section was valid but ineffective where plaintiff’s motion for summary judgment was granted. Morris Plan Co. v. Whitman, 51 R.I. 24 , 150 A. 610, 1930 R.I. LEXIS 41 (1930).

The requirement that demand for jury trial be made before assignment day applies to cases in which motion for summary judgment has been made, even though the motion has not been disposed of by assignment day. Bond & Goodwin v. Weiner, 53 R.I. 407 , 167 A. 189, 1933 R.I. LEXIS 129 (1933).

After decision for plaintiff on a motion for summary judgment, if demand for jury trial has not been made, judgment should be entered forthwith and the case need not be entered on the nonjury calendar. Bond & Goodwin v. Weiner, 54 R.I. 244 , 172 A. 395, 1934 R.I. LEXIS 59 (1934).

— New Parties.

Where no party claimed a jury trial before assignment day, but where a new defendant was made a party after such day and filed a written claim for jury trial he was entitled to it, even though he was an undisclosed principal to one of the original defendants. Prescott v. Kelley, 52 R.I. 45 , 157 A. 198, 1931 R.I. LEXIS 101 (1931).

Waiver.

Where plaintiff endorsed his demand for jury trial on defendant’s copy of complaint, so that after withdrawal of defendant’s copy there was no record of demand in court, the defendant was entitled to rely on plaintiff’s demand and could himself demand jury trial, even though plaintiff had filed subsequent waiver of claim. Allworth v. Interstate Consol. R. Co., 27 R.I. 106 , 60 A. 834, 1905 R.I. LEXIS 37 (1905).

A party who has waived a jury trial and has had a trial by a justice sitting without a jury is not entitled to a trial by jury when a new trial has been ordered. Shepard Co. v. General Motors Truck Co., 50 R.I. 187 , 146 A. 477, 1929 R.I. LEXIS 43 (1929).

An undisclosed principal is not bound by the waiver of a trial by jury in a suit in which the agent and not the principal was the defendant. Prescott v. Kelley, 52 R.I. 45 , 157 A. 198, 1931 R.I. LEXIS 101 (1931).

The parties cannot consent to a jury trial after both have waived it by failing to demand jury trial before assignment day. Orr v. Superior Court, 52 R.I. 335 , 161 A. 139, 1932 R.I. LEXIS 79 (1932).

Where party claimed a jury trial and did not withdraw his claim before assignment day, he could not thereafter waive jury trial. Hutson v. Cavicchia, 53 R.I. 518 , 167 A. 531, 1933 R.I. LEXIS 133 (1933).

Where a party claims a jury trial, and later, by stipulation with the other party, waives such trial, he cannot later claim a jury trial, as a right once waived is gone forever and cannot be reclaimed. Macknight & Hoffman, Inc. v. Programs for Achievement in Reading, 96 R.I. 345 , 191 A.2d 354, 1963 R.I. LEXIS 95 (1963).

A property owner whose property is taken for public use has a right to waive a trial by jury just as this right is available in every action at law originally brought in the superior court. Atlantic Ref. Co. v. Director of Pub. Works, 98 R.I. 167 , 200 A.2d 580, 1964 R.I. LEXIS 146 (1964).

This section permits a property owner whose property is being taken under eminent domain to waive the right to trial by jury provided by § 37-6-17 . Ronci Mfg. Co. v. Director of Pub. Works, 99 R.I. 723 , 210 A.2d 585, 1965 R.I. LEXIS 508 (1965).

Where but one party may claim a jury trial and the other may not, the party entitled to a jury trial and having claimed it may withdraw such claim after assignment day. Smith v. Department of Pub. Works, 103 R.I. 268 , 237 A.2d 335, 1968 R.I. LEXIS 793 (1968).

Collateral References.

Authority of state court to order jury trial in civil case where jury has been waived or not demanded by parties. 9 A.L.R.4th 1041.

Consolidation of actions for personal injuries or property damage arising out of same accident as affected by fact that one action had been set down for trial without jury. 104 A.L.R. 75; 68 A.L.R.2d 1372.

Right to jury trial in action for declaratory relief in state court. 33 A.L.R.4th 146.

Waiver of jury trial in action for declaratory relief. 13 A.L.R.2d 782.

Waiver of right to jury trial as operative after expiration of term during which it was made, or as regards subsequent trial.

9-11-8. County in which questions heard and disposed of — Intervention of jury.

All questions of pleading or practice, not arising in the trial of the case, all motions, and all defaulted cases in the superior court shall be heard and disposed of by the court for the county in which the action is pending; provided, that all such matters arising in Newport, Kent, or Washington county may, when the court is not sitting in the county, be heard and disposed of in Providence, and, if, after judgment is rendered on motion or default, damages are to be assessed, they shall be assessed by the court with the intervention of a jury unless cause be shown why there should be no intervention of a jury.

History of Section. C.P.A. 1905, § 284; G.L. 1909, ch. 287, § 8; G.L. 1923, ch. 337, § 8; G.L. 1938, ch. 526, § 8; G.L. 1956, § 9-11-8 ; P.L. 1958, ch. 61, § 1; P.L. 1965, ch. 55, § 22.

NOTES TO DECISIONS

Transmitting Papers.

In proceeding filed in Kent county in which papers were ordered transmitted to clerk of superior court for Providence and Bristol, a motion filed in office of the clerk for Providence and Bristol was not properly in the cause since it should have been filed in clerk’s office in Kent. Parker v. Superior Court, 40 R.I. 214 , 100 A. 305, 1917 R.I. LEXIS 18 (1917).

Unanswered Default Cases.

Proceeding joined on issues where defendant voluntarily submitted to judgment by default and case was continued for assessment of damages was a case of an answered default judgment, and not a case of unanswered default covered in G.L. 1896, ch. 238, § 8. King v. Rhode Island Co., 27 R.I. 112 , 60 A. 837, 1905 R.I. LEXIS 40 (1905).

Chapter 12 District Court Practice

9-12-1, 9-12-2. Repealed.

History of Section. C.P.A. 1905, §§ 266, 267; G.L. 1909, ch. 286, §§ 1, 2; G.L. 1923, ch. 336, §§ 1, 2; G.L. 1938, ch. 525, §§ 1, 2; Repealed by P.L. 1965, ch. 55, § 25, effective January 10, 1966.

9-12-3. Special complaint where whole amount exceeds court jurisdiction.

In all actions in the district court where the whole amount is more than five thousand dollars ($5,000) and the balance stated by the plaintiff does not exceed that sum, he or she may bring his or her action for such balance, and shall so state specially in his or her complaint, and he or she shall, on the filing of the complaint, or afterwards on motion, file his or her account of debt and credit in the action.

History of Section. C.P.A. 1905, § 275; G.L. 1909, ch. 286, § 10; G.L. 1923, ch. 336, § 10; P.L. 1929, ch. 1331, § 6; G.L. 1938, ch. 525, § 10; G.L. 1956, § 9-12-3 ; P.L. 1965, ch. 55, § 24; P.L. 1969, ch. 239, § 9.

9-12-4. Action on instrument originally exceeding jurisdictional amount.

In all actions for the recovery of money due on any note or other instrument in writing, which was given originally for five thousand dollars ($5,000) or a larger sum, and which by indorsement or by acknowledgment is reduced to five thousand dollars ($5,000) or under, including principal and interest, suit may be brought before the district court as provided in § 9-12-3 , and judgment may be entered thereon, and execution awarded, in the same manner as though the note or other instrument in writing had been originally given for the sum to which the note or other instrument in writing has been reduced.

History of Section. C.P.A. 1905, § 276; G.L. 1909, ch. 286, § 11; G.L. 1923, ch. 336, § 11; P.L. 1929, ch. 1331, § 6; G.L. 1938, ch. 525, § 11; G.L. 1956, § 9-12-4 ; P.L. 1969, ch. 239, § 9; P.L. 1997, ch. 326, § 80.

9-12-5 — 9-12-9. Repealed.

History of Section. C.P.A. 1905, §§ 268 — 271; G.L. 1909, ch. 286, §§ 3 — 6; G.L. 1909, ch. 286, § 12; P.L. 1920, ch. 1935, § 1; G.L. 1923, ch. 336, §§ 3 — 6, 12; G.L. 1938, ch. 525, §§ 3 — 6, 12; Repealed by P.L. 1965, ch. 55, § 25, effective January 10, 1966.

9-12-10. Claim of appeal of superior court.

Except as otherwise provided, in all civil cases in the district court, any party may cause the case to be removed for trial on all questions of law and fact to the superior court for the county in which division the suit is pending by claiming an appeal from the judgment of the district court, in writing, filed with the clerk of the division within two (2) days, exclusive of Saturdays, Sundays, and legal holidays, after the judgment is entered; provided, that the party claiming the appeal, at the time of claiming the appeal, shall pay to the clerk all costs, including an attorney’s fee of fifty dollars ($50.00), for the party or parties adversely interested in the judgment, to be paid by the clerk to the attorney for the adverse party. The attorney’s fee of fifty dollars ($50.00) shall be divided equally among the attorneys for the parties adversely interested when more than one adverse party is involved; and provided, further, that costs shall not be taxed, exclusive of the attorney’s fee, at a sum not less than twenty-five dollars ($25.00), in addition to a technology surcharge assessed in accordance with § 8-15-11 .

History of Section. C.P.A. 1905, § 272; G.L. 1909, ch. 286, § 7; G.L. 1923, ch. 336, § 7; P.L. 1929, ch. 1326, § 1; G.L. 1938, ch. 525, § 7; G.L. 1956, § 9-12-10 ; P.L. 1956, ch. 3751, § 1; P.L. 1965, ch. 55, § 24; P.L. 1969, ch. 239, § 9; P.L. 1976, ch. 140, § 3; P.L. 1977, ch. 18, § 1; P.L. 1980, ch. 99, § 1; P.L. 1983, ch. 55, § 1; P.L. 2014, ch. 34, § 3; P.L. 2014, ch. 42, § 3.

Compiler’s Notes.

P.L. 2014, ch. 34, § 3, and P.L. 2014, ch. 42, § 3 enacted identical amendments to this section.

Rules of Court.

Appeals to superior court, see Dist. Ct. Civ. Rule 73.

Stay of judgment upon claim of appeal, see Dist. Ct. Civ. Rule 62(d).

Cross References.

Division of motor vehicles, appeals, §§ 31-2-17 , 31-2-19 , 31-3.1-36 , 31-11-15 , 31-31-2 , 39-14-18 .

Employment security appeals, §§ 28-39-16 , 28-41-27 , 28-42-55 , 28-44-55 .

Mental health certification appeals, §§ 40.1-5-8 , 40.1-5-36 .

Narcotic addicts, appeal of admission, § 21-28.2-14.1 .

Tax administrator appeals, §§ 3-10-6 , 31-36-9 , 31-36-18 , 44-11-24 , 44-11-35 , 44-11-38 , 44-12-10 , 44-13-22 , 44-13-32 , 44-13-33 , 44-14-26 , 44-14-36 , 44-14-37 , 44-15-15 , 44-15-16 , 44-17-5 , 44-19-18 , 44-19-25 , 44-19-27.4 , 44-20-46 , 44-20-48 , 44-23-24 , 44-23-33 , 44-29-10 , 44-29-13 , 44-30-90 , 44-30-92 .

Traffic offenses, appeals, §§ 31-41.1-8 , 31-41.1-9 .

NOTES TO DECISIONS

Action of Account.

In an action of account in the district court the only right to jury trial is on the judgment to account, not on the auditor’s report. White v. Eddy, 19 R.I. 108 , 31 A. 823, 1895 R.I. LEXIS 39 (1895).

Appeal Bond.

In the usual appeal from the district court to the superior court, the appellant must only pay certain litigation costs, but eviction proceedings necessitate the posting of an appeal bond pursuant to § 9-12-12 as well. Oaks v. District Court of Rhode Island, 631 F. Supp. 538, 1986 U.S. Dist. LEXIS 27371 (D.R.I. 1986).

Decision and Judgment Distinguished.

Under provisions giving a party a right to claim a jury trial “after a decision is made,” a plaintiff who consented to entry of decision in favor of defendant was entitled to claim a jury trial, since decision was not a judgment in the technical sense. Dorney v. Ives, 36 R.I. 276 , 90 A. 164, 1914 R.I. LEXIS 22 (1914).

Demand for Jury.

Although written claim for jury should be filed with clerk of superior court, the requirement is satisfied if such claim is filed with district court clerk and transmitted with other papers to superior court clerk and received before assignment day. Agnew v. Max, 57 R.I. 452 , 190 A. 436, 1937 R.I. LEXIS 109 (1937).

Enjoining Enforcement of Judgment.

The enforcement of a judgment at law will not be enjoined in equity when the defendant failed to take advantage of the methods open to him to review such judgment and neglected to allege a meritorious defense to such action. Opie v. Clancy, 27 R.I. 42 , 60 A. 635, 1905 R.I. LEXIS 21 (1905).

Failure to Enter Appearance.

Where defendant failed to enter appearance within the prescribed time it became the duty of the court to disregard the claim of jury trial filed by the petitioner, to default said case, and to enter judgment for the plaintiff therein as of the entry date of the writ. Mathewson v. Lewis, 33 R.I. 398 , 82 A. 34, 1912 R.I. LEXIS 95 (1912).

Joint Defendants.

Where decision of district court was against both of two joint defendants, claim by one defendant for jury trial under G.L. 1896, ch. 237, § 7, would be dismissed. Bassett v. Loewenstein, 22 R.I. 468 , 48 A. 589, 1901 R.I. LEXIS 35 (1901).

A joint defendant had the right to join codefendants in claim for jury trial under G.L. 1896, ch. 237, § 7, and common pleas division upon motion should have imposed costs accruing therein upon the moving appellant. Bassett v. Loewenstein, 22 R.I. 468 , 48 A. 589, 1901 R.I. LEXIS 35 (1901).

Mistake or Neglect of Clerk.

Where plaintiff duly claimed jury trial and paid costs, under G.L. 1896, ch. 237, § 7, he did all that was required, and failure of clerk of district court to certify and transmit the case and papers, as required by G.L. 1896, ch. 237, § 8, did not deprive common pleas division of jurisdiction when such case was certified. Wilbur v. Best, 22 R.I. 550 , 48 A. 824, 1901 R.I. LEXIS 53 (1901).

Where the plaintiff did nothing in the original action with regard to removal of the suit from the district to the superior court except to claim a jury trial in writing upon the entry day of the writ, the mere fact that clerk of the district court sent the papers to the superior court without waiting to see whether defendant answered did not work a discontinuance where the papers were promptly returned to the district court. Needle v. H. C. Biddle & Co., 32 R.I. 342 , 79 A. 942, 1911 R.I. LEXIS 42 (1911).

The superior court on motion will permit the clerk of the district court to amend a clerical error on the record. Grieco v. Jackvony, 43 R.I. 26 , 109 A. 801, 1920 R.I. LEXIS 27 (1920).

Superior court is not prevented from acquiring jurisdiction if the appealing party has paid the total costs as taxed by the clerk and has otherwise complied with the statute, even though clerk mistakenly set too small a sum. Plastic Merchandisers v. Royal Moulding Co., 57 R.I. 510 , 190 A. 788, 1937 R.I. LEXIS 127 (1937).

Motions for Summary Judgments.

There is no language in this section from which it can be implied that motions for summary judgments are excluded from the provisions thereof. Nor is there any language in the Summary Judgment Law from which it can reasonably be implied that the legislature intended to exclude such motions from the provisions of this section. To hold otherwise would be to bar a plaintiff’s right to be heard on a motion for a summary judgment in every instance upon defendant’s appeal from a district court’s decision. What Cheer Aluminum Window Co. v. Marc-Sterling Realty Corp., 89 R.I. 367 , 153 A.2d 133, 1959 R.I. LEXIS 91 (1959).

The superior court had jurisdiction to hear and determine the motions for summary judgment and justice and orderly procedure will be best served by remitting these cases to the superior court so that the trial justice may hear the motions and determine the sufficiency of petitioner’s affidavits of no defense and thereafter proceed in accordance with former § 9-7-3 to determine whether there is an issue of fact to be tried and that the respondents have a defense to the action. What Cheer Aluminum Window Co. v. Marc-Sterling Realty Corp., 89 R.I. 367 , 153 A.2d 133, 1959 R.I. LEXIS 91 (1959).

Payment of Attorney’s Fees.

The statutory provision for the payment of costs is separate and distinct from that for the payment of an attorney’s fee, and, since the legislature did not intend nonattorney litigants to be compensated for their own services, the appealing party need pay the attorney’s fee only if the adverse party is represented by an attorney. Goulet v. Dalton, 117 R.I. 304 , 366 A.2d 537, 1976 R.I. LEXIS 1629 (1976).

Payment of Costs.

Former provisions of the statute providing that if either party to a proceeding in district court claimed a jury trial, the case was to be certified to the superior court were contingent upon payment of jury costs, and if party requesting jury trial refused to pay costs, the case would not be certified. Spencer v. District Court of Sixth Judicial Dist., 37 R.I. 466 , 93 A. 647, 1915 R.I. LEXIS 22 (1915).

Plaintiff appealing from nominal judgment in his favor was not required to pay any costs other than attorney fees where the judgment appealed from did not assess costs against him. Plastic Merchandisers v. Royal Moulding Co., 57 R.I. 510 , 190 A. 788, 1937 R.I. LEXIS 127 (1937).

Although § 9-29-14 exempts the Legal Aid Society and its clients from the payment in advance of those initial fees and charges of litigation which are required in the ordinary case, it does not extend the exemption to the payment of costs for the purpose of perfecting an appeal to the superior court under this section. Ainsworth v. Saybrooke Mfg. Co., 60 R.I. 290 , 198 A. 348, 1938 R.I. LEXIS 146 (1938).

The district court has inherent power at common law to waive the costs of appeal required to be paid under this section in the case of an indigent defendant in an action for possession of tenements. Jones v. Aciz, 110 R.I. 911 , 289 A.2d 44, 1972 R.I. LEXIS 1020 (1972).

Any defendant who desires to appeal the judgment in an action for trespass and ejectment must pay the litigation costs required by this section, and must also post bond “to pay all monies due, or which may become due pending the action under the tenancy, and such damages and costs as may be awarded against him . . .” under § 9-12-12 . Oaks v. District Court of Rhode Island, 631 F. Supp. 538, 1986 U.S. Dist. LEXIS 27371 (D.R.I. 1986).

Right of Appeal.

An appeal, in the nature of a trial de novo, is provided to the parties in the state superior court, as long as certain litigation costs are prepaid by the appellant. Oaks v. District Court of Rhode Island, 631 F. Supp. 538, 1986 U.S. Dist. LEXIS 27371 (D.R.I. 1986).

A garnishee who claims to be erroneously charged is a person aggrieved and entitled to appeal to the superior court on both questions of law and fact, so he is not entitled to a review by writ of certiorari. George E. Merewether, Inc. v. Equi, 53 R.I. 148 , 165 A. 219, 1933 R.I. LEXIS 48 (1933).

A plaintiff may appeal to the superior court the discharge of a garnishee even though he has had judgment in the full amount of his claim against the principal defendant. P. J. Noyes Co. v. Frost, 54 R.I. 142 , 170 A. 493, 1934 R.I. LEXIS 23 (1934).

Where garnishee was discharged plaintiff was a person aggrieved and entitled to appeal under this section. Coro Fed. Credit Union v. Winograd, 86 R.I. 75 , 133 A.2d 749, 1957 R.I. LEXIS 71 (1957).

It is still the rule that a party who has consented to a judgment against himself in the district court may nevertheless appeal to the superior court. Stidhams v. McPherson, 106 R.I. 295 , 259 A.2d 114, 1969 R.I. LEXIS 627 (1969).

Supplementary Proceedings.

An order in supplementary proceedings is appealable pursuant to this section. Murphy v. Charlie's Home Improvement Co., 117 R.I. 324 , 366 A.2d 809, 1976 R.I. LEXIS 1633 (1976).

Time of Appeal.

Where tortfeasors had lost a case before the district court and instructed defense counsel to file the matter in the superior court, defense counsel’s failure to follow the clients’ instructions until two days after the appellate deadline did not qualify as an accident, mistake, unforeseen cause, or excusable neglect allowing an appeal to be taken out of time under R.I. Gen. Laws § 9-21-6 . Carlson v. Bedford, 828 A.2d 516, 2003 R.I. LEXIS 121 (2003).

— Extension.

The bond given upon appeal in action of ejectment and trespass was not void as to the surety where not filed within the statutory period but filed later with plaintiff’s consent. Whipp v. Casey, 21 R.I. 506 , 45 A. 93, 1900 R.I. LEXIS 1 (1900).

District court had no jurisdiction to vacate decision for possession of tenement and extend time beyond that provided by the statute so as to permit defendant to claim jury trial and file satisfactory bond. Whitaker v. Bliss, 23 R.I. 313 , 50 A. 266, 1901 R.I. LEXIS 133 (1901).

Court did not have jurisdiction under § 9-21-2 to vacate judgment on grounds it was entered by mistake thereby extending time for appeal, since under § 9-22-17 defendant had a full right to a hearing and revision. Bottum & Torrance Co. v. Consolidated Yarns, 53 R.I. 50 , 163 A. 544, 1933 R.I. LEXIS 21 (1933).

Under this section and Dist. R. Civ. P. 41(b)(3) district court may not vacate a dismissal order which amounts to an appealable judgment and then reinstate such judgment in order to extend the time allowed to appeal under this section. Ferranti v. M. A. Gammino Constr. Co., 109 R.I. 634 , 289 A.2d 56, 1972 R.I. LEXIS 1226 (1972).

Vacating Judgment.

Defendant could appeal to superior court from denial of motion to vacate judgments on ground of want of jurisdiction. D'Angelo v. Ventura, 72 R.I. 120 , 48 A.2d 247, 1946 R.I. LEXIS 41 (1946).

A petition for certiorari to the state supreme court is not a proper vehicle for the review of a district court order denying a motion to vacate, since such order possesses all the attributes of finality so as to be subject to appeal pursuant to this section and absent unusual hardship or exceptional circumstances the supreme court has traditionally refused to review by certiorari a case where direct appeal lies. Murphy v. Charlie's Home Improvement Co., 117 R.I. 324 , 366 A.2d 809, 1976 R.I. LEXIS 1633 (1976).

Where defendants appealed the district court’s denial of their motion to vacate a default judgment, pursuant to R.I. Gen. Laws § 9-12-10 , defendants’ appeal entitled them to a trial de novo in the superior court on all issues of fact and law, notwithstanding the district court’s entry of the default judgment. Val-Gioia Props., LLC v. Blamires, 18 A.3d 545, 2011 R.I. LEXIS 56 (2011).

Withdrawal of Appeal.

Whenever a party appeals from a district court judgment to the superior court, the party taking that appeal may withdraw the appeal at any time prior to trial; and, upon withdrawal, the district court judgment is reinstated. Putnam Furniture Leasing Co. v. Borden, 539 A.2d 73, 1988 R.I. LEXIS 41 (1987).

9-12-10.1. Claim of appeal to superior court in landlord tenant actions.

In any civil action pursuant to chapter 18 of title 34, in the district court or other appropriate court, any party may cause the case to be removed for trial on all questions of law and fact to the superior court for the county in which division the suit is pending, by claiming an appeal from the judgment of the district or other appropriate court, in writing, filed with the clerk of the division within five (5) days after the judgment is entered; provided, that the party claiming the appeal at the time of claiming the appeal, shall pay to the clerk all costs, including an attorney’s fee of fifty dollars ($50.00) for the party or parties adversely interested in the judgment, to be paid by the clerk to the attorney for the adverse party; provided, further, that costs shall not be taxed, exclusive of the attorney’s fee, at a sum less than twenty-five dollars ($25.00), in addition to a technology surcharge assessed in accordance with § 8-15-11 .

History of Section. P.L. 1986, ch. 200, § 6; P.L. 1997, ch. 326, § 80; P.L. 2014, ch. 34, § 3; P.L. 2014, ch. 42, § 3.

Compiler’s Notes.

P.L. 2014, ch. 34, § 3, and P.L. 2014, ch. 42, § 3 enacted identical amendments to this section.

NOTES TO DECISIONS

Failure to Pay Costs.

The failure of a defendant in an action for eviction to pay the costs assessed by the district court, in the absence of a claim of indigence or waiver of said costs, justifies the superior court in dismissing an appeal and denying the defendant the trial de novo that would otherwise be available to him. Chrysler First Fin. Servs. Corp. v. Van Daam, 566 A.2d 390, 1989 R.I. LEXIS 159 (1989), cert. denied, 495 U.S. 936, 110 S. Ct. 2182, 109 L. Ed. 2d 511, 1990 U.S. LEXIS 2367 (1990).

— Burden of Proof.

The district court has the inherent power at common law to waive the costs of appeal required to be paid by an indigent defendant who appeals a judgment in an action for possession of tenements. However, the court must remain cognizant that the burden is upon the party appealing to prove that he or she is absolutely unable to pay the costs of appeal. Chrysler First Fin. Servs. Corp. v. Van Daam, 604 A.2d 339, 1992 R.I. LEXIS 57 (1992).

— Evidentiary Hearing.

When an adverse party requests an evidentiary hearing on the issue of a defendant’s indigency with respect to the costs of appeal in an action for possession of tenements, the district court is required to hold such a hearing before exercising its discretion with regard to waiving appeal costs. Chrysler First Fin. Servs. Corp. v. Van Daam, 604 A.2d 339, 1992 R.I. LEXIS 57 (1992).

Subject Matter Jurisdiction.

Supreme Court of Rhode Island could not review a determination by a motion justice because the justice erred in dismissing a trustee’s trespass and ejectment action for lack of subject matter jurisdiction, and the justice did not hold a hearing or make findings of fact as to standing. Joseph P. Notarianni Revocable Trust of January, 2007 v. Notarianni, 91 A.3d 771, 2014 R.I. LEXIS 73 (2014).

Timeliness.

The proper remedy for a party aggrieved by a judgment for trespass and eviction is to file an appeal with the superior court pursuant to § 34-18-47 , which directs a litigant to bring appeals under this section, and the plaintiff waived his right to appeal his eviction when he missed the five-day filing deadline. Garganta v. Mobile Village, Inc., 730 A.2d 1, 1999 R.I. LEXIS 107 (1999).

Trial De Novo.

Superior Court justice did not err in revisiting the district court’s decision in a landlord-tenant dispute, as R.I. Gen. Laws § 9-12-10.1 mandates that the appeal to the superior court is to proceed on a de novo basis. Bernier v. Lombardi, 793 A.2d 201, 2002 R.I. LEXIS 53 (2002).

9-12-11. Transmission of papers to superior court — Assignment for trial.

If an appeal is claimed, the case and the papers shall, on the next court day of the district court, be certified and forthwith transmitted to the superior court for the county wherein the division is situated, and the case shall be in order for assignment for trial in accordance with applicable procedural rules after ten (10) days from the certification, but if the case is for tenement let, or held at will or by sufferance, and including leases of land, it shall at once be certified to the superior court, and shall be in order for assignment forthwith, and shall take precedence of other matters on the calendar.

History of Section. C.P.A. 1905, § 273; G.L. 1909, ch. 286, § 8; G.L. 1923, ch. 336, § 8; P.L. 1929, ch. 1331, § 6; G.L. 1938, ch. 525, § 8; G.L. 1956, § 9-12-11 ; P.L. 1965, ch. 55, § 24; P.L. 1969, ch. 239, § 9; P.L. 1986, ch. 157, § 1.

NOTES TO DECISIONS

Assignment for Trial.

While this section provides that an action of trespass and ejectment is “in order for assignment forthwith” irrespective of the ordinary assignment day, by complying with requirements of § 8-11-3 , as to form of motion the defendant has a right to be heard as to the time of trial. Union Trust Co. v. National Coal Co., 65 R.I. 255 , 14 A.2d 506, 1940 R.I. LEXIS 106 (1940).

Assignment for trial of ejectment suit made an ex parte motion by plaintiff without hearing should have been vacated on oral motion of defendants when case was called for trial although defendants had written notice of assignment. Union Trust Co. v. National Coal Co., 65 R.I. 255 , 14 A.2d 506, 1940 R.I. LEXIS 106 (1940).

Case Improperly Certified.

Where plaintiff claimed a jury trial in writing upon the entry day of the writ and the clerk of the district court sent the papers to the superior court without waiting to see whether the case was answered, it was proper for the superior court to send back the papers to the district court and the right of plaintiff to judgment by default was unimpaired. Needle v. H. C. Biddle & Co., 32 R.I. 342 , 79 A. 942, 1911 R.I. LEXIS 42 (1911).

Failure to Certify.

Failure of clerk of district court to certify and transmit the case and papers did not deprive common pleas division of jurisdiction when such case was later certified. Wilbur v. Best, 22 R.I. 550 , 48 A. 824, 1901 R.I. LEXIS 53 (1901).

The failure of the clerk of a district court to certify a case as required by statute does not affect the jurisdiction of the superior court, and if the case is later certified either voluntarily or under mandamus the case should be treated in superior court, as far as the circumstances will permit, as though duly certified in accordance with the statutory requirements. Durfee v. District Court of First Judicial Dist., 44 R.I. 462 , 119 A. 60, 1922 R.I. LEXIS 80 (1922).

Filing Further Pleas.

The right to file further pleas within ten days from the date of certification under the provisions of former § 9-11-3 was so inconsistent with the procedure in trespass and ejectment under the provisions of this section that such right did not apply. Durfee v. District Court of First Judicial Dist., 44 R.I. 462 , 119 A. 60, 1922 R.I. LEXIS 80 (1922).

Mandamus.

Where clerk of district court neglected to certify and transmit case on proper claim of jury trial, mandamus would lie to compel him to perform his statutory duty. Wilbur v. Best, 22 R.I. 550 , 48 A. 824, 1901 R.I. LEXIS 53 (1901).

Pleas in District Court After Certification.

Where pleas were filed in the district court after the case had been certified to the court of common pleas and were transmitted to the clerk of the court of common pleas within the time allowed for filing additional pleas in that court, such pleas were filed in time even though not stamped by clerk of court of common pleas as having been received by him. Wildes v. Draper, 24 R.I. 262 , 52 A. 1086, 1902 R.I. LEXIS 66 (1902).

Prerequisites to Certification.

Under former provisions requiring party claiming jury trial to pay jury costs, if party requesting jury trial refused to pay costs, the case would not be certified. Spencer v. District Court of Sixth Judicial Dist., 37 R.I. 466 , 93 A. 647, 1915 R.I. LEXIS 22 (1915).

9-12-12. Appeal bond of defendant in action for possession of commercial or other tenements let.

Every defendant in an action for the possession of commercial or other tenements let or held at will or sufferance, other than actions pursuant to chapter 18 of title 34, claiming an appeal shall, in addition to making the payments required by § 9-12-10 , give bond to the plaintiff, with one or more sureties satisfactory to the district court, to pay all rent or other money due, or which may become due pending the action under the tenancy, and such damages and costs as may be awarded against him or her, the bond to be filed with the clerk of the district court, or person acting as clerk, at the time of claiming an appeal.

History of Section. P.L. 1988, ch. 494, § 2; P.L. 1989, ch. 285, § 2.

Repealed Sections.

A former section (C.P.A. 1905, § 274; G.L. 1909, ch. 286, § 9; G.L. 1923, ch. 336, § 9; G.L. 1938, ch. 525, § 9; G.L. 1956, § 9-12-12 ), concerning defendant’s appeal bonds in actions for possession of tenements let, was repealed by P.L. 1986, ch. 200, § 7, effective January 1, 1987. Section 2 of P.L. 1988, ch. 494 enacted the present section, effective June 9, 1988.

NOTES TO DECISIONS

Failure to Give Bond.

Because the defendant failed to file the bond and pay rent during the appeal, the plaintiff was granted possession of the premises. B & R Realty v. Romano, 651 A.2d 1223, 1994 R.I. LEXIS 273 (1994).

9-12-13. Costs in superior court.

Where an appeal is claimed by the plaintiff under the provisions of § 9-12-10 , and the judgment in the superior court, if for the plaintiff, does not exceed the amount awarded him or her in the district court, he or she shall recover no costs, and shall also pay the defendant’s costs, and if on the plaintiff’s claim of appeal the judgment, as in the district court, shall be for the defendant, the defendant shall be entitled to double costs; and if the defendant claims an appeal and the judgment is for the plaintiff for the same or a greater amount than that awarded by the district court, the defendant shall be taxed double costs. In cases involving multiple plaintiffs or multiple defendants, costs, including double costs, shall be taxed in the discretion of the court, and the costs may be taxed against a coparty as well as against the opposing party or parties.

History of Section. C.P.A. 1905, § 272; G.L. 1909, ch. 286, § 7; G.L. 1923, ch. 336, § 7; P.L. 1929, ch. 1326, § 1; G.L. 1938, ch. 525, § 7; G.L. 1956, § 9-12-13 ; P.L. 1956, ch. 3751, § 1; P.L. 1965, ch. 55, § 24.

Rules of Court.

For costs in superior court, see Super. Ct. R. Civ. P. Rule 54(d), (e).

Chapter 13 Notices and Stipulations

9-13-1. Serving notice on adverse party’s attorney.

Whenever it is provided that notice in writing shall be given to any party represented by an attorney, the service shall be made upon the attorney unless service upon the party himself or herself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or her or by mailing it to him or her at his or her last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this section means: handing it to the person to be served; or leaving it at his or her office with his or her clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or if the office is closed or the person to be served has no office, leaving it at his or her dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing.

History of Section. C.P.A. 1905, § 345; G.L. 1909, ch. 290, § 4; G.L. 1923, ch. 340, § 4; G.L. 1938, ch. 527, § 1; G.L. 1956, § 9-13-1 ; P.L. 1965, ch. 55, § 26.

Rules of Court.

Service of papers, see Super. Ct. R. Civ. P. Rule 5.

NOTES TO DECISIONS

Attorney of Record.

The sine qua non which makes one an attorney of record is his execution of an entry of appearance, which places all on notice that the person whose signature appears thereon is the one the court and opposing counsel can look to for the management, direction, and control of a pending case and, in the absence of such appearance, an attorney is not entitled to notice of any proceeding. Home Ins. Co. v. Sormanti Realty Corp., 102 R.I. 187 , 229 A.2d 296, 1967 R.I. LEXIS 669 (1967).

Default.

Where an action at law was duly answered by the defendant and assigned for trial and on said day defendant was duly called and defaulted and the action was passed indefinitely without proof of damages, defendant was entitled to notice that motion had been filed for the assessment of damages. Sahagian v. Sahagian, 48 R.I. 267 , 137 A. 221, 1927 R.I. LEXIS 56 (1927).

Collateral References.

Leaving notice at residence as compliance with requirement that party be served “personally” or “in person,” etc. 172 A.L.R. 521.

9-13-2. Extension of time for proceedings by consent.

The parties to a cause, by consent in writing, may extend the time of pleading or the periods within which proceedings in court are prescribed to be taken.

History of Section. C.P.A. 1905, § 347; G.L. 1909, ch. 290, § 6; G.L. 1923, ch. 340, § 6; G.L. 1938, ch. 527, § 2; G.L. 1956, § 9-13-2 .

Collateral References.

Extension of time, stipulation for, as affecting application of statutory requirement or rule of court that action be brought to trial within specified time. 112 A.L.R. 1166.

Relief from stipulations. 161 A.L.R. 1161.

“Until” as word of inclusion or exclusion where one is given until a certain day to file a pleading. 16 A.L.R. 1095.

Waiver by plaintiff of right to enter default judgment against defendant by extending defendant’s time for filing pleading. 124 A.L.R. 164.

Chapter 14 Equity Practice

9-14-1. Statutory proceedings following course of equity.

Subject to applicable procedural rules, all petitions for the enforcement of mechanics’ liens, petitions for divorce, and statutory proceedings so prescribed by statute, shall follow the course of equity so far as it is applicable.

History of Section. C.P.A. 1905, § 304; G.L. 1909, ch. 289, § 1; G.L. 1923, ch. 339, § 1; G.L. 1938, ch. 528, § 1; G.L. 1956, § 9-14-1 ; P.L. 1965, ch. 55, § 27.

Rules of Court.

One form of action to be known as “civil action,” see Super. Ct. R. Civ. P. Rule 2.

NOTES TO DECISIONS

Declaratory Judgments.

Even though petitions for declaratory judgments follow the course of equity, it was not error on the part of the superior court justice to hear the cause without affording the opportunity to other party to prepare an answer where the hearing was prior to the amendment of the superior court rules on March 12, 1963 providing for filing of pleas. Kent Estates v. Matteson, 97 R.I. 230 , 197 A.2d 292, 1964 R.I. LEXIS 75 (1964).

Divorce and Alimony.

The court as a part of its jurisdiction in divorce and alimony has all the equity powers suitable to the determination of the property rights involved in the award of alimony. Grattage v. Superior Court, 42 R.I. 546 , 109 A. 86, 1920 R.I. LEXIS 18 (1920).

Since the court in a divorce proceeding has equity powers, it may make all necessary orders, even after decree, for the custody and protection of children. Budlong v. Budlong, 51 R.I. 113 , 152 A. 256, 1930 R.I. LEXIS 61 (1930).

— Appeals.

Appeal did not lie from an interlocutory decree in a divorce proceeding. Hemenway v. Hemenway, 28 R.I. 85 , 65 A. 608, 1906 R.I. LEXIS 12 (1906).

This section did not create a right of appeal in divorce cases. Fidler v. Fidler, 28 R.I. 102 , 65 A. 609, 1907 R.I. LEXIS 2 (1907); Scolardi v. Scolardi, 42 R.I. 456 , 108 A. 651, 1920 R.I. LEXIS 9 (1920).

A decree on a claim for alimony entered after the entry of final decree for divorce would be reviewed on appeal. Phillips v. Phillips, 39 R.I. 92 , 97 A. 593, 1916 R.I. LEXIS 26 (1916).

— Discontinuance.

Since divorce proceedings follow the course of equity, the courts will not permit a petition to be discontinued where to do so would prejudice the rights of others, as where respondent has filed a cross petition. Borda v. Borda, 43 R.I. 384 , 113 A. 118, 1921 R.I. LEXIS 88 (1921).

Since equitable proceedings are flexible, it could be held in a particular case that a discontinuance of a divorce petition would discontinue a cross petition for other relief. Brown v. Brown, 51 R.I. 132 , 152 A. 423, 1930 R.I. LEXIS 64 (1930).

— Exceptions.

Petition for divorce was a “civil action” within the meaning of former § 9-24-13 and a bill of exceptions was the appropriate vehicle for the bringing and presenting to the supreme court questions of law which might arise in the trial of divorce cases. Thrift v. Thrift, 30 R.I. 357 , 75 A. 484, 1910 R.I. LEXIS 27 (1910); Sullivan v. Sullivan, 68 R.I. 25 , 26 A.2d 536, 1942 R.I. LEXIS 35 (1942).

Decree of superior court granting alimony was reviewable by exceptions where divorce was also granted in same decree. Sullivan v. Sullivan, 68 R.I. 25 , 26 A.2d 536, 1942 R.I. LEXIS 35 (1942).

Receiverships.

G.L. 1896, ch. 178, § 45, a bank receivership law granting the appellate division “the same power . . . as is exercised by courts of equity in like cases,” invoked the equity rule as to claims of secured creditors, rather than the rule contained in the insolvency statute. In re Burke, 25 R.I. 302 , 55 A. 825, 1903 R.I. LEXIS 77 (1903).

Worker’s Compensation.

Workmen’s compensation proceedings strictly are neither actions at law nor suits in equity but special statutory proceedings which should follow the practice of equity. Warner v. Bay View Hotel, 74 R.I. 264 , 60 A.2d 488, 1948 R.I. LEXIS 79 (1948).

9-14-2 — 9-14-8. Repealed.

History of Section. C.P.A. 1905, §§ 305 — 309, 318, 319; G.L. 1909, ch. 289, §§ 2 — 6, 15, 16; G.L. 1923, ch. 339, §§ 2 — 6, 15, 16; G.L. 1938, ch. 528, §§ 2 — 6, 15, 16; Repealed by P.L. 1965, ch. 55, § 28, effective January 10, 1966.

9-14-9 — 9-14-10. Repealed.

History of Section. C.P.A. 1905, § 317; G.L. 1909, ch. 289, § 14; G.L. 1923, ch. 339, § 14; G.L. 1938, ch. 528, § 14; G.L. 1956, §§ 9-14-9 , 9-14-10; P.L. 1966, ch. 1, § 8); Repealed by P.L. 1979, ch. 373, § 5. For present law, see Rule 13 of the Rules of Procedure for Domestic Relations.

Compiler’s Notes.

Former §§ 9-14-9 and 9-14-10 concerned cross petition and affirmative relief to respondent in divorce proceedings.

9-14-11 — 9-14-24. Repealed.

History of Section. C.P.A. 1905, §§ 310-315, 320, 322-324, 327, 354; P.L. 1907, ch. 1459, § 9; G.L. 1909, ch. 289, §§ 7-12, 17, 19-21, 24; G.L. 1909, ch. 291, § 7; G.L. 1923, ch. 339, §§ 7-12, 17, 19-21, 24; G.L. 1923, ch. 341, § 7; G.L. 1938, ch. 528, §§ 7-12, 17, 19-21, 24, 27, 28; P.L. 1951, ch. 2745, § 1; Repealed by P.L. 1965, ch. 55, § 28, effective January 10, 1966.

9-14-25. Expenses and counsel fees paid out of decedent’s or trust estate.

In any civil action or other proceeding wherein construction of a will or trust deed or any part thereof is asked, there may be allowed to each of the parties defendant brought in by the action or other proceeding, applying therefor, such reasonable sum for expenses and on account of counsel fees as the court in which the case is pending shall deem proper; the allowance shall be taxed as costs in the cause and be paid out of the estate or fund in the hands of the complainant concerning which estate or fund the construction is asked.

History of Section. C.P.A. 1905, § 325; G.L. 1909, ch. 289, § 22; G.L. 1923, ch. 339, § 22; G.L. 1938, ch. 528, § 22; G.L. 1956, § 9-14-25 ; P.L. 1965, ch. 55, § 27.

NOTES TO DECISIONS

Amount of Fees.

In the proceeding for the construction of the will or trust deed, the parties brought in as defendants became eligible for the exercise of the superior court’s jurisdictional discretion to award counsel fees based on their assistance to the court and not on whether the estate was benefited. Young v. Exum, 110 R.I. 685 , 296 A.2d 451, 1972 R.I. LEXIS 967 (1972).

Appeal From Decree.

A decree entered under the provisions of this section authorizing party to engage counsel to defend former decree and to pay such counsel out of the assets of the trust estate was a final decree from which an appeal was allowed. Montaquila v. Montaquila, 85 R.I. 447 , 133 A.2d 119, 1957 R.I. LEXIS 50 (1957).

Where an award by the trial court, of fees to guardians ad litem and their attorneys for representing a minor in a suit to construe a deed of trust was appealed, by the trustee, the guardians and their counsel were not entitled to further fees for defending such appeal, since their efforts were only in defense of their own interests and of no benefit to the trust. Industrial Nat'l Bank v. Isele, 110 R.I. 157 , 290 A.2d 903, 1972 R.I. LEXIS 893 (1972).

Cross Bill.

Complainant in bill in equity for construction of will was not entitled to attorney’s fees or expenses even though defendant’s answer was in nature of a cross bill where it was not treated as such on original appeal and did not raise any new questions nor call for different relief. Gould v. Rhode Island Hosp. Trust Co., 54 R.I. 138 , 170 A. 489, 1934 R.I. LEXIS 20 , quashed, 170 A. 490 (1934).

Estate or Fund From Which Payable.

In a proceeding for the construction of a clause relative to distribution of one-half of the proceeds of a trust established by such clause, the costs of the proceedings were chargeable against the general assets of the trust and not solely against the one-half interest. Rhode Island Hosp. Trust Co. v. Johnston, 81 R.I. 115 , 99 A.2d 12, 1953 R.I. LEXIS 22 (1953).

In an action to construe a will and trust, where the testator, after designating certain assets to be held in trust for the beneficiaries, directed that his residuary estate be used to pay the expenses of caring for and managing the assets held for the beneficiaries, the counsel fees and other expenses of such action should be paid from such residuary estate. Industrial Nat'l Bank v. Colt, 102 R.I. 672 , 233 A.2d 112, 1967 R.I. LEXIS 741 (1967).

Where there were two trusts created in the same will, and the second trust was much more depleted than the first trust, it was fairer for the attorney fees to be paid out of the first trust, so as to ensure that the second trust would not be exhausted by attorney fees. Fleet Nat'l Bank v. Miglietta, 602 A.2d 544, 1992 R.I. LEXIS 16 (1992).

Proceedings in Nature of Interpleader.

Where bill was in nature of interpleader rather than for construction of will, attorneys’ fees were not allowed defendants. Sackett v. Paine, 128 A. 555, 1925 R.I. LEXIS 81 (1925).

Proceedings to Which Applicable.

This section does not apply to proceeding concerning trustee’s compensation for acting as salesman in selling lots, where deed of trust was executed in compromise of proceeding under bill for partition, and no construction of a will or trust deed was sought. Montaquila v. Montaquila, 85 R.I. 447 , 133 A.2d 119, 1957 R.I. LEXIS 50 (1957).

Under this section guardians ad litem and their attorneys representing minor who made a not entirely spurious claim to participate in the benefits of a trust were entitled to fees taxed as costs to the trust estate in a suit brought by trustee to construe its deed of trust, to which suit the minor was a necessary party. Industrial Nat'l Bank v. Isele, 110 R.I. 157 , 290 A.2d 903, 1972 R.I. LEXIS 893 (1972).

In action brought by the trustee to construe a deed of trust, disallowance of counsel fees to attorneys for necessary minor defendant and his mother for services rendered prior to commencement of the suit was not an abuse of the discretion granted trial courts under this section. Industrial Nat'l Bank v. Isele, 110 R.I. 157 , 290 A.2d 903, 1972 R.I. LEXIS 893 (1972).

Where the proceeding for construction of the will was remanded to the superior court, the only jurisdiction which remained in the superior court was to fix reasonable counsel fees and expenses for services leading to the remand and subsequent litigation concerning the dispute between plaintiff and defendants unrelated to the construction of the will was not taxable to the estate. Young v. Exum, 110 R.I. 685 , 296 A.2d 451, 1972 R.I. LEXIS 967 (1972).

Collateral References.

Allowance of costs in litigation by beneficiary of resulting trust. 9 A.L.R.2d 1132.

Excessiveness or adequacy of attorneys’ fees in matters involving real estate — modern cases. 10 A.L.R.5th 448.

Property or funds increased or protected by attorney’s services, allowance of attorney’s fee against. 107 A.L.R. 749.

Trust, payment of attorney’s fees from income or corpus of. 124 A.L.R. 1185.

9-14-26. Master’s conveyance of property.

If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specified acts and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by a master in chancery or some other person appointed by the court, and the act when so done has like effect as if done by the party.

History of Section. C.P.A. 1905, § 326; G.L. 1909, ch. 289, § 23; G.L. 1923, ch. 339, § 23; G.L. 1938, ch. 528, § 23; G.L. 1956, § 9-14-26 ; P.L. 1965, ch. 55, § 27.

9-14-27. Repealed.

History of Section. G.L. 1923, ch. 339, § 39 P.L. 1929, ch. 1338, § 1; G.L. 1938, ch. 528, § 25; P.L. 1940, ch. 934, § 1; G.L. 1956, § 9-14-27 ; Repealed by P.L. 1965, ch. 55, § 28, effective January 10, 1966.

Compiler’s Notes.

Former § 9-14-27 concerned fraud charged but not proved.

9-14-28. Court rule or order varying forms of process or mode of proceeding.

The superior court may, by general rule or by special order, vary the forms of process, mode of proceeding, or of decree, heretofore in use, in such manner as may be necessary to carry into effect the provisions of any statute of this state.

History of Section. C.P.A. 1905, § 321; G.L. 1909, ch. 289, § 18; G.L. 1923, ch. 339, § 18; G.L. 1938, ch. 528, § 18; G.L. 1956, § 9-14-28 .

Collateral References.

Pleading, practice, or procedure, power of court to prescribe rules for. 110 A.L.R. 22; 158 A.L.R. 705.

Chapter 15 Referees, Auditors, and Masters in Chancery

9-15-1. Reference by agreement of parties.

Any court may permit the parties in any civil action pending therein to enter into a rule of court to refer the action to the decision of one or more referees, to be agreed on by the parties, and also to refer in the same rule any other actions, causes of action, or suits that may exist between them, either jointly or severally, generally or specially.

History of Section. C.P.A. 1905, § 406; G.L. 1909, ch. 293, § 1; G.L. 1923, ch. 343, § 1; G.L. 1938, ch. 532, § 1; G.L. 1956, § 9-15-1 ; P.L. 1965, ch. 55, § 29.

Rules of Court.

Reference of case to master, see Civil Procedure Rule 53(b).

Cross References.

Arbitration, reference to, § 10-3-2 et seq.

Bribery, §§ 11-7-1 , 11-7-2 .

Oaths, power to administer, § 36-2-3 .

Referees in unclassified service, § 36-4-2 .

Subpoena of witnesses, § 9-17-3 .

Comparative Legislation.

Auditors, masters and referees:

Conn. Gen. Stat. § 52-425 et seq.

Mass. Ann. Laws ch. 221, § 53 et seq.

Collateral References.

Interlocutory order of one judge granting or refusing reference as binding on another judge in the same case. 132 A.L.R. 74.

Nonsuit within contemplation of statute extending time for new action in case of nonsuit, exclusion of item of account by referee as. 86 A.L.R. 1050.

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

Voluntary dismissal or nonsuit, right of plaintiff to take, after submission of case to referee. 89 A.L.R. 99; 126 A.L.R. 284.

What amounts to “final submission” or “retirement of jury” within statute permitting plaintiff to take voluntary dismissal or nonsuit without prejudice before submission or retirement of jury. 31 A.L.R.3d 449.

9-15-2. Reference without action or suit brought.

Though no action or suit is brought or pending, as provided in § 9-15-1 , the district court may permit any persons or corporations who have any cause or causes of action not following the course of equity and the superior court may permit any persons or corporations who have any cause or causes of action, existing between them, to enter into a rule of court to refer the cause or causes of action to the decision of one or more referees, as provided in § 9-15-1 , either jointly or severally, generally or specially; provided, that no rule entered into in the district court under the provisions of this chapter shall be made for any claim or claims which exceed in amount the sum of five thousand dollars ($5,000).

History of Section. C.P.A. 1905, § 407; G.L. 1909, ch. 293, § 2; G.L. 1923, ch. 343, § 2; P.L. 1929, ch. 1331, § 8; G.L. 1938, ch. 532, § 2; G.L. 1956, § 9-15-2 ; P.L. 1969, ch. 239, § 10; P.L. 1997, ch. 326, § 81.

9-15-3. Certification of rule to another county.

Leave may be given under § 9-15-2 , in the superior court, to enter the rule in any county, to be certified to the county where the matter more properly belongs.

History of Section. C.P.A. 1905, § 408; G.L. 1909, ch. 293, § 3; G.L. 1923, ch. 343, § 3; G.L. 1938, ch. 532, § 3; G.L. 1956, § 9-15-3 .

Collateral References.

Interlocutory order of one judge granting or refusing reference as binding on another judge in the same case. 132 A.L.R. 74.

9-15-4. Contents and effect of agreement of reference — Majority report of referees.

The parties to any rule shall agree upon the mode of procedure, the defraying of expenses, the time when and manner in which the referees shall make their report, and the time and manner of issuing execution on the judgment or decree which the court shall enter, upon the coming in of the report; and every such agreement shall be conclusive upon the parties and upon their heirs, executors, administrators, and successors, and, if involving real estate, when notice thereof is duly recorded, upon their assigns, and a majority report of referees shall be binding and conclusive.

History of Section. C.P.A. 1905, § 409; G.L. 1909, ch. 293, § 4; G.L. 1923, ch. 343, § 4; G.L. 1938, ch. 532, § 4; G.L. 1956, § 9-15-4 .

9-15-5. Oath of referee.

Every referee, before he or she proceeds to the business of the reference, shall be sworn to perform his or her duties faithfully and impartially as referee.

History of Section. C.P.A. 1905, § 412; G.L. 1909, ch. 293, § 7; G.L. 1923, ch. 343, § 7; G.L. 1938, ch. 532, § 7; G.L. 1956, § 9-15-5 .

9-15-6. Judgment and execution on report.

Upon the coming in of the report of referees, the court shall enter judgment or decree thereon and in conformity thereto and issue execution accordingly.

History of Section. C.P.A. 1905, § 410; G.L. 1909, ch. 293, § 5; G.L. 1923, ch. 343, § 5; G.L. 1938, ch. 532, § 5; G.L. 1956, § 9-15-6 .

9-15-7. Discharge or recommission of rule.

The court may, at any time in its discretion, on motion of either party, discharge a rule or recommit a rule and report to the same referees, or, with consent of the parties, to other referees; but a rule shall remain in full force until so discharged, and shall be continued without continuance fees, until report shall be made thereon.

History of Section. C.P.A. 1905, § 411; G.L. 1909, ch. 293, § 6; G.L. 1923, ch. 343, § 6; G.L. 1938, ch. 532, § 6; G.L. 1956, § 9-15-7 .

9-15-8. Recording of decisions involving real estate.

Whenever any rule, entered into under the provisions of this chapter, shall concern the title to real estate, the referees shall report their proceedings, with a plat of the real estate in question showing the title as affected by their decisions; and if their report is finally received, a copy of the report and plat, certified by the clerk of the court where the rule is entered, shall be recorded in the records of land evidence in the town or city in which the estate shall be, and the expense of the record shall be a part of the costs of the party against whom the referees shall have decided, unless otherwise agreed.

History of Section. C.P.A. 1905, § 414; G.L. 1909, ch. 293, § 9; G.L. 1923, ch. 343, § 9; G.L. 1938, ch. 532, § 9; G.L. 1956, § 9-15-8 .

9-15-9 — 9-15-17. Repealed.

History of Section. C.P.A. 1905, §§ 415 — 423; G.L. 1909, ch. 293, §§ 10 — 18; G.L. 1938, ch. 532, §§ 10 — 18; Repealed by P.L. 1965, ch. 55, § 30, effective January 10, 1966.

9-15-18. Summons of witnesses and administration of oaths.

Referees and auditors shall have power to administer oaths in all matters tried before them, and also power to compel witnesses to attend and give testimony under oath in matters tried before them, in the same manner and by a similar process as courts of record, and any summons for witnesses may be issued and signed by any referee or auditor, or by any clerk of court, notary public, or justice of the peace.

History of Section. C.P.A. 1905, § 413; G.L. 1909, ch. 293, § 8; G.L. 1923, ch. 343, § 8; G.L. 1938, ch. 532, § 8; G.L. 1956, § 9-15-18 .

9-15-19. Appointment of masters in chancery — Rules and orders.

The superior court, by a majority of the justices thereof, shall appoint in each county one or more standing masters in chancery to hold office during the pleasure of the court; and may make all such rules and orders, not contrary to law, with regard to proceedings before masters in chancery, their reports, and exceptions to and hearings on them, as to it shall seem expedient.

History of Section. C.P.A. 1905, § 424; G.L. 1909, ch. 293, § 19; G.L. 1923, ch. 343, § 19; G.L. 1938, ch. 532, § 19; G.L. 1956, § 9-15-19 .

Rules of Court.

Appointment of masters in chancery, see Super. Ct. R. Civ. P. Rule 53(a).

Collateral References.

Construction of, or right attached to, findings of fact of master in chancery. 33 A.L.R. 745.

9-15-20. Protection of parties and witnesses in referred matters.

Masters in chancery, auditors, and referees shall have the same power to issue writs of protection to parties and witnesses in matters pending before them as is possessed by the courts from which they derive their appointment, and the signing of such writs by any one master, auditor, or referee, who has been duly sworn, shall be sufficient.

History of Section. C.P.A. 1905, § 425; G.L. 1909, ch. 293, § 20; G.L. 1923, ch. 343, § 20; G.L. 1938, ch. 532, § 20; G.L. 1956, § 9-15-20 .

Cross References.

Bribery, §§ 11-7-1 , 11-7-2 .

Oaths, power to administer, § 36-2-3 .

Subpoena of witnesses, § 9-17-3 .

Collateral References.

Contempt, power of referee to punish for. 8 A.L.R. 1575; 54 A.L.R. 326.

9-15-21. Stenographic reports and transcripts.

Masters in chancery, auditors, and referees may employ stenographers to report and transcribe the testimony taken in causes referred to them, and the cost of the reports and transcripts shall be allowed as part of the costs.

History of Section. C.P.A. 1905, § 426; G.L. 1909, ch. 293, § 21; G.L. 1923, ch. 343, § 21; G.L. 1938, ch. 532, § 21; G.L. 1956, § 9-15-21 .

Chapter 16 View by Jury

9-16-1. Court order for view.

In all cases in which it shall seem advisable to the court, on request of either party, a view by the jury may be ordered; and in all such cases, the court shall regulate the proceedings at the view and, in its discretion, accompany the jury.

History of Section. C.P.A. 1905, § 355; G.L. 1909, ch. 292, § 1; G.L. 1923, ch. 342, § 1; G.L. 1938, ch. 508, § 1; G.L. 1956, § 9-16-1 .

Comparative Legislation.

View by jury:

Mass. Ann. Laws ch. 234, § 35.

NOTES TO DECISIONS

Changed Conditions.

In a condemnation proceeding the trial court did not abuse its discretion in granting motion for a view of land even though it had been completely changed by erection of housing units by the housing authority where there was a possibility that conflicting evidence might be offered as to the actual or potential use of the land by the former owners. Sasso v. Housing Auth., 82 R.I. 451 , 111 A.2d 226, 1955 R.I. LEXIS 93 (1955).

It was an abuse of discretion to allow the jury to see the property long after it was taken by the state and after the conditions of the premises had materially changed for the worse. Ajootian v. Director of Public Works, 90 R.I. 96 , 155 A.2d 244, 1959 R.I. LEXIS 119 (1959).

Discretion of Court.

Order and conduct of view by jury is discretionary with the court. State v. Germain, 47 R.I. 269 , 132 A. 734, 1926 R.I. LEXIS 45 (1926); State v. Francis, 78 R.I. 73 , 79 A.2d 177, 1951 R.I. LEXIS 37 (1951).

In a proceeding for assessment of damages, the object of a view is to aid the jury to understand more clearly the evidence presented at the trial and such an order is discretionary with the trial justice. Ajootian v. Director of Public Works, 90 R.I. 96 , 155 A.2d 244, 1959 R.I. LEXIS 119 (1959).

Object of View.

The object of a view of the premises is not to get evidence but was merely to enable the court and jury to more clearly understand the evidence presented at the trial. State v. Congdon, 14 R.I. 458 , 1884 R.I. LEXIS 30 (1884); State v. Germain, 47 R.I. 269 , 132 A. 734, 1926 R.I. LEXIS 45 (1926); State v. Smith, 70 R.I. 500 , 41 A.2d 153, 1945 R.I. LEXIS 5 (1945); Kulpa v. General Ice Cream Corp., 71 R.I. 168 , 43 A.2d 60, 1945 R.I. LEXIS 35 (1945).

Presence of Accused.

Where the view was granted at the request of the defense and the prisoner did not ask to be permitted to go to the view and made no objection either then or afterwards during the trial because he did not go, the prisoner must be held to have waived his privilege. State v. Congdon, 14 R.I. 458 , 1884 R.I. LEXIS 30 (1884).

In a murder prosecution, the defendant suffered no prejudice as a result of his voluntarily absenting himself from a view of the evidence, in the face of the decision by the state marshals to shackle him during the course of the view. It is certainly proper to require a person accused of a most violent crime to be reasonably restrained by handcuffs and/or shackles in an open area in the presence of jurors and other participants. In any event, the defendant’s presence at the view was not a critical state of the trial, since his participation would have been virtually nonexistent except to have been certain that the jurors were brought to the right place to which the evidence later presented would have appropriately related. State v. Hightower, 661 A.2d 948, 1995 R.I. LEXIS 200 (1995).

Self Incrimination.

The trial court’s granting of the state’s motion to have the jury view the premises in question, was not in violation of the defendant’s constitutional rights as to self incrimination. State v. Smith, 70 R.I. 500 , 41 A.2d 153, 1945 R.I. LEXIS 5 (1945).

Time of Order.

It is no abuse of discretion that a view is ordered while the defendant is testifying. State v. Francis, 78 R.I. 73 , 79 A.2d 177, 1951 R.I. LEXIS 37 (1951).

Collateral References.

Absence of accused as rendering view by jury reversible error. 30 A.L.R. 1357; 90 A.L.R. 597.

Demonstration, test, or experiment during authorized view as ground for reversal. 150 A.L.R. 958.

Discretion of trial court in criminal cases as to permitting or denying view of premises where crime was committed. 124 A.L.R. 841.

Evidentiary effect of view by jury in condemnation proceedings. 1 A.L.R.3d 1397.

Prejudicial effect, in civil case, of acts of juror in viewing premises with witnesses. 52 A.L.R.2d 182.

Prejudicial effect of indicating to jury in civil case desire of party for view by jury. 76 A.L.R.2d 766.

Prejudicial effect of misconduct by one other than juror during authorized view by jury in civil case. 45 A.L.R.2d 1128.

Prejudicial effect of unauthorized view by jury in civil case of scene of accident or premises in question. 11 A.L.R.3d 918.

Propriety of permitting view by jury in civil personal injury or death action as affected by claimed change of conditions since accident or incident. 85 A.L.R.2d 512.

9-16-2. Expenses of view.

To entitle himself or herself to a view, the party moving therefor shall advance such reasonable sum of money to the sheriff, to defray the expenses of the jury on the view, as the court shall order, and the amount of the expenses shall be taxed against the adverse party, if he or she who advanced the expenses shall recover costs in the suit.

History of Section. C.P.A. 1905, § 356; G.L. 1909, ch. 292, § 2; G.L. 1923, ch. 342, § 2; G.L. 1938, ch. 508, § 2; G.L. 1956, § 9-16-2 .

Chapter 17 Witnesses

9-17-1. Form of subpoena.

The form of subpoena to a witness shall be substantially as follows:

Sc. To of Greeting: You are hereby required, in the name of the state of Rhode Island, to make your appearance before holden at on the day of to give evidence of what you know relative to an action or plea of then and there are to be heard and tried between plaintiff and defendant. Hereof fail not, as you will answer your default under the penalty of the law in that behalf made and provided. Dated at the day of in the year .

Click to view

History of Section. C.P.A. 1905, § 357; G.L. 1909, ch. 292, § 3; G.L. 1923, ch. 342, § 3; G.L. 1938, ch. 537, § 1; G.L. 1956, § 9-17-1 ; P.L. 2021, ch. 77, § 7, effective June 23, 2021; P.L. 2021, ch. 78, § 7, effective June 23, 2021.

Compiler’s Notes.

P.L. 2021, ch. 77, § 7, and P.L. 2021, ch. 78, § 7 enacted identical amendments to this section.

Rules of Court.

For subpoenas for attendance of witnesses in superior court, see Super. Ct. R. Civ. P. Rule 45.

For subpoenas for attendance of witnesses in district court, see Dist. Ct. Civ. Rule 45.

Subpoena of witnesses, Super. Ct. R. Cr. P. Rule 17.

Comparative Legislation.

Witnesses generally:

Conn. Gen. Stat. § 52-143 et seq.

Mass. Ann. Laws ch. 233, § 1 et seq.

Collateral References.

Admissibility under Rules 804(b)(1) and 807 of Federal Rules of Evidence (Fed. Rules Evid. Rules 804(b)(1) and 807, 28 USCA) of grand jury testimony of unavailable witness. 149 A.L.R. Fed. 231.

Adverse presumption or inference based on party’s failure to produce or examine that party’s attorney—modern cases. 78 A.L.R.4th 571.

Adverse presumption or inference based on party’s failure to produce or examine transferor, transferee, broker, or other person allegedly involved in transaction at issue — modern cases. 81 A.L.R.4th 939.

Adverse presumption or inference based on party’s failure to produce or examine witness who was occupant of vehicle involved in accident — modern cases. 78 A.L.R.4th 616.

Adverse presumption or inference based on state’s failure to produce or examine law enforcement personnel — modern cases. 81 A.L.R.4th 872.

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

Permissibility of testimony by telephone in state trial. 85 A.L.R.4th 476.

9-17-2. Subpoenas by court clerks and district court judges.

Clerks of court and judges of the district court may issue subpoenas to witnesses in all cases pending in their own or any other court.

History of Section. C.P.A. 1905, § 358; G.L. 1909, ch. 292, § 4; G.L. 1923, ch. 342, § 4; G.L. 1938, ch. 537, § 2; G.L. 1956, § 9-17-2 ; P.L. 1969, ch. 239, § 11.

9-17-3. Subpoenas issued by other officials.

Auditors, referees, masters in chancery, and commissioners may issue subpoenas to witnesses in all cases and matters pending before them, respectively; and justices of the peace and notaries public may issue subpoenas to witnesses in any case, civil or criminal, before any court, and in any matter before any body or person authorized by law to summon witnesses.

History of Section. C.P.A. 1905, § 359; G.L. 1909, ch. 292, § 5; G.L. 1923, ch. 342, § 5; G.L. 1938, ch. 537, § 3; G.L. 1956, § 9-17-3 .

Rules of Court.

For rule concerning issuance of subpoenas, see Super. Ct. R. Civ. P. Rule 45.

Cross References.

Fees of town clerk, § 45-7-6 .

9-17-4. Service of subpoena.

A subpoena to a witness shall be served by delivering a copy to him or her.

History of Section. C.P.A. 1905, § 361; G.L. 1909, ch. 292, § 7; G.L. 1923, ch. 342, § 7; G.L. 1938, ch. 537, § 5; G.L. 1956, § 9-17-4 ; P.L. 1965, ch. 55, § 31.

Rules of Court.

Service of subpoena, see Super. Ct. R. Civ. P. Rule 45(c).

Service of subpoena in district court, see Dist. Ct. R. Civ. P. Rule 45.

Cross References.

Fees for serving subpoenas, § 9-29-9 .

9-17-5. Duty to attend when subpoenaed.

Every witness who shall be duly served with a subpoena in behalf of any party to a suit or proceeding, civil or criminal, and shall have his or her lawful fees tendered to him or her for his or her travel from his or her place of abode to the place at which he or she shall be summoned to attend, and for one day’s attendance, shall be obliged to attend accordingly.

History of Section. C.P.A. 1905, § 362; G.L. 1909, ch. 292, § 8; G.L. 1923, ch. 342, § 8; G.L. 1938, ch. 537, § 8; G.L. 1956, § 9-17-5 .

Rules of Court.

Contempt for failure to obey subpoena, see Super. Ct. R. Civ. P. Rule 45(e).

Contempt for failure to appear in district court, see Dist. Ct. Civ. Rule 45.

Subpoena of witnesses, Sup. Ct. R. Cr. P. Rule 17.

Cross References.

Compelling attendance of witnesses from without the state, § 12-16-1 et seq.

Criminal cases, fees, § 12-20-7 .

Fees of witnesses, § 9-29-7 .

Taxation of fees as costs, § 9-22-15 .

Law Reviews.

Survey Section: Confidential Health-Care Records, see 3 R.W.U.L. Rev. 408 (1998).

NOTES TO DECISIONS

Health Care Records.

Although confidential health-care information about a person can be subject to compulsory legal process without first obtaining the person’s consent, health care entities that are subpoenaed to bring the records to a judicial proceeding are not thereby authorized to disclose the records or the information within to any party or person other than the court. In this case, by not complying with the § 9-17-5 governing responses to subpoenas, the pharmacy violated the Confidentiality Act (Chapter 37.3 of Title 5). Washburn v. Rite Aid Corp., 695 A.2d 495, 1997 R.I. LEXIS 203 (1997).

Because the pharmacy is not a qualified “health care facility”, it is not entitled to take advantage of the provisions of § 9-19-39 which allows a qualified health care facility to respond to a subpoena for health-care records by certified mail. Washburn v. Rite Aid Corp., 695 A.2d 495, 1997 R.I. LEXIS 203 (1997).

Nonpayment of Fees.

A witness has an obligation to appear pursuant to a subpoena and is entitled to be paid a fee. However, a witness’ obligation to appear remains separate from the requirement that a witness be paid, and consequently, nonpayment of a witness fee does not justify a refusal to appear as ordered. Robinson v. Ridlon, 653 A.2d 730, 1995 R.I. LEXIS 24 (1995).

Remedies for Nonattendance.

Where witness absented himself without cause, plaintiff was entitled to a continuance and writ of attachment against such witness. Holden v. Shove, 1 R.I. 287 , 1850 R.I. LEXIS 8 (1850).

Collateral References.

Evidence of threats made to keep witnesses away in criminal trial. 62 A.L.R. 136.

Juror drawn in criminal case, excusing of, where he is desired as a witness as ground of complaint by defendant. 96 A.L.R. 522.

9-17-5.1. Subpoena for production of documentary evidence.

  1. When a subpoena for the production of books, papers, documents, or tangible things is served on a federal or state agency, public utility, national bank, insurance company, financial institution, or a public or private institution of higher education organized under state or federal laws, it shall be deemed a sufficient response to the subpoena if the employee of the entity charged with the responsibility of being custodian of the original records promptly provides the attorney for the party causing service of the subpoena copies of all documents requested by the subpoena. All responses to the subpoena shall contain a certificate which shall be signed before a notary public by the employee of the entity charged with the responsibility of being custodian of the records and shall include a legend substantially to the following effect: “The copies of records for which this certification is made are true and complete reproductions of the original or microfilmed records which are in the possession of (name of entity). The original records were made in the regular course of business, and it was the regular course of (name of entity) to make such records at or near the time of the matter recorded. This certification is given pursuant to Rhode Island general laws § 9-17-5.1 by the custodian of the records in lieu of his or her personal appearance.”
  2. Documents or records of any federal or state agency, public utility, national bank, financial institution organized under state or federal laws, a public or private institution of higher education, or of a hospital that are susceptible to photostatic reproduction may be proved as to foundation, identity, and authenticity without any preliminary testimony, by use of legible and durable copies, certified in the manner provided in subsection (a) by the employee of the entity charged with the responsibility of being custodian of the originals thereof. The copies may be used in any trial, hearing, deposition, or any other judicial or administrative action or proceeding, whether civil or criminal, in lieu of the original documents or records which, however, the entity shall hold available for inspection and comparison by the court, tribunal, or hearing officer and by the parties and their attorneys of record.
  3. In the event any of the entities are unable to provide the documents requested in the subpoena due to the timeliness of the service of the subpoena or for other legal reasons, then the employee charged with the responsibility of being custodian of the records for the entity shall set forth in the certificate required hereunder the specific reasons for the noncompliance, the time of service of the subpoena, and if appropriate the time anticipated in complying with the subpoena.

History of Section. P.L. 1988, ch. 161, § 1; P.L. 1995, ch. 262, § 1; P.L. 1996, ch. 188, § 22.

Collateral References.

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

9-17-6. Tender of fees to certain witnesses not required.

A witness summoned in behalf of the state or, in a criminal proceeding, in behalf of a defendant who the court finds is financially unable to pay witness fees shall have no right to have his or her fees paid or tendered to him or her before he or she shall be bound to obey the summons.

History of Section. C.P.A. 1905, § 363; G.L. 1909, ch. 292, § 9; G.L. 1923, ch. 342, § 9; G.L. 1938, ch. 537, § 6; G.L. 1956, § 9-17-6 ; P.L. 1972, ch. 169, § 6.

Cross References.

State witnesses, summoning in criminal case, § 35-6-23 et seq.

9-17-7. Attachment to compel attendance.

The court before which any witness is duly summoned to appear may compel his or her attendance by writ of attachment, fine him or her not exceeding twenty dollars ($20.00), and order him or her to pay the costs of the attachment and to be committed to the adult correctional institutions until the fine and costs are paid.

History of Section. C.P.A. 1905, § 365; G.L. 1909, ch. 292, § 11; G.L. 1923, ch. 342, § 11; G.L. 1938, ch. 537, § 9; G.L. 1956, § 9-17-7 ; impl. am. P.L. 1956, ch. 3721, § 1.

Rules of Court.

Contempt for failure to obey subpoena, see Super. Ct. R. Civ. P. Rule 45(e).

Contempt for failure to appear in district court, see Dist. Ct. Civil Rule 45.

9-17-8. Attachment of witness in criminal proceeding.

Whenever any witness, duly served with a subpoena to testify in any criminal proceeding at any court, shall neglect to appear according to the tenor of the subpoena, the court may order a writ of attachment to issue against him or her, returnable at such time as the court shall direct, and may direct the writ of attachment to each and all deputy sheriffs, town sergeants, and constables within the state.

History of Section. C.P.A. 1905, § 366; G.L. 1909, ch. 292, § 12; G.L. 1923, ch. 342, § 12; G.L. 1938, ch. 537, § 10; G.L. 1956, § 9-17-8 ; P.L. 2012, ch. 324, § 18.

NOTES TO DECISIONS

Prerequisites of Service.

Where officers on three occasions went to home of witness and apprised her that they intended to serve a subpoena on her, and on all three occasions witness refused admittance to the officers so as to frustrate their efforts to serve her personally, service requirements of Super. Ct. R. Cr. P. Rule 17(d) were satisfied, and court was empowered to issue a body attachment. State v. Counts, 452 A.2d 1141, 1982 R.I. LEXIS 1097 (1982).

9-17-9. Commitment of attached witness — Recognizance.

If the court from which the writ of attachment issues, pursuant to § 9-17-8 , shall not be in session at the time of the service of the writ, the officer charged with the service thereof shall commit the witness to jail, either in the county from which the writ shall issue or in which the witness shall be, there to be kept until he or she shall give recognizance before some person authorized to take bail in the same county, with sufficient surety, in the sum of one hundred dollars ($100), to appear before the court on the day named in the writ, or, failing to give recognizance, until he or she is discharged by the court; and the recognizance shall be returned by the person to the clerk of the court.

History of Section. C.P.A. 1905, § 367; G.L. 1909, ch. 292, § 13; G.L. 1923, ch. 342, § 13; G.L. 1938, ch. 537, § 11; G.L. 1956, § 9-17-9 ; P.L. 1997, ch. 326, § 82.

9-17-10. Discharge from custody on giving of recognizance.

The witness may give recognizance as provided in § 9-17-9 while in custody of the officer, before he or she is committed to jail; and thereupon the officer shall discharge him or her from custody.

History of Section. C.P.A. 1905, § 368; G.L. 1909, ch. 292, § 14; G.L. 1923, ch. 342, § 14; G.L. 1938, ch. 537, § 12; G.L. 1956, § 9-17-10 ; P.L. 1997, ch. 326, § 82.

9-17-11. Civil liability for failure to attend.

Every witness who does not appear according to the tenor of the subpoena, and has no reasonable excuse for his or her nonappearance, shall be liable to an action by the aggrieved party for all damages sustained in consequence of the default.

History of Section. C.P.A. 1905, § 364; G.L. 1909, ch. 292, § 10; G.L. 1923, ch. 342, § 10; G.L. 1938, ch. 537, § 13; G.L. 1956, § 9-17-11 .

9-17-12. Competency of parties or interested persons.

No person shall be disqualified from testifying in any civil action or proceeding by reason of his or her being interested therein or being a party thereto.

History of Section. C.P.A. 1905, § 389; G.L. 1909, ch. 292, § 37; G.L. 1923, ch. 342, § 37; G.L. 1938, ch. 537, § 14; G.L. 1956, § 9-17-12 .

NOTES TO DECISIONS

Taking Own Deposition.

A party may have a commission to take his own deposition. Rabinowitz v. Bayliss, 76 R.I. 479 , 72 A.2d 668, 1950 R.I. LEXIS 26 (1950).

Collateral References.

Admissibility of impeached witness’ prior consistent statement - modern state civil cases. 58 A.L.R.4th 1014; 59 A.L.R.4th 1000.

Admissibility, on cross-examination or otherwise, of evidence that witness in civil action had been under arrest, indictment, or other criminal accusation on a charge growing out of the accident, transaction, or occurrence involved in the civil action, for purpose of showing bias or interest of witness. 149 A.L.R. 938.

Disregarding uncontradicted testimony of interested witnesses in civil action. 62 A.L.R.2d 1191.

Insurance against liability, admissibility of evidence to show that defendant in personal injury or death action carries, for purpose of showing bias or interest of witness. 56 A.L.R. 1439; 74 A.L.R. 849; 95 A.L.R. 388; 105 A.L.R. 1319; 4 A.L.R.2d 761.

Prior consistent statements by witness, admissibility of, for purpose of supporting witness impeached on ground of motive to falsify, bias, or interest.

Subrogation, admissibility, to show bias or interest of witness, of evidence that he or his employer had compensated the party for whom he testified in circumstances creating right to. 128 A.L.R. 1110.

9-17-13. Spouses of parties.

In the trial of every civil cause, the husband or wife of either party shall be deemed a competent witness; provided, that neither shall be permitted to give any testimony tending to criminate the other or to disclose any communication made to him or her, by the other, during their marriage, except on trials of petitions for divorce between them, trials between them involving their respective property rights, and under the provisions of § 11-34.1-9 .

History of Section. C.P.A. 1905, § 391; G.L. 1909, ch. 292, § 39; G.L. 1923, ch. 342, § 39; G.L. 1938, ch. 537, § 15; G.L. 1956, § 9-17-13 ; P.L. 2010, ch. 239, § 16.

Cross References.

Testimony in family support proceedings, § 15-23.1-316 .

NOTES TO DECISIONS

Applicability.

When a client’s legal malpractice suit against an attorney and law firm arose from language in antenuptial and postnuptial agreements, the marital privilege did not bar discovery of antenuptial and postnuptial agreements the attorney prepared for other clients because (1) the parties to the antenuptial agreements were not testifying nor were they married at the time the agreements were executed, and (2) adequate redaction should eliminate any communications between husband and wife that bear on confidentiality. DeCurtis v. Visconti, 152 A.3d 413, 2017 R.I. LEXIS 10 (2017).

Criminal Proceedings.

This section does not prevent a spouse from giving evidence in a criminal case that would be inadmissible in a civil case. State v. Kenyon, 18 R.I. 217 , 26 A. 199, 1893 R.I. LEXIS 21 (1893).

Crimination.

Testimony by wife that husband put her out of his house was inadmissible in husband’s action for alienation of wife’s affections, as such testimony might criminate the husband. Rose v. Mitchell, 21 R.I. 270 , 43 A. 67, 1899 R.I. LEXIS 38 (1899).

In an action for alienation of affections and criminal conversation, the wife would not be permitted to answer a question as to what had been the husband’s conduct so far as sobriety is concerned, such answer tending to criminate him. Hargraves v. Ballou, 47 R.I. 186 , 131 A. 643, 1926 R.I. LEXIS 26 (1926).

Marital Communications.

Testimony of wife to language used by husband which tended to show his unkind treatment of her was expressly excluded by this section. Rose v. Mitchell, 21 R.I. 270 , 43 A. 67, 1899 R.I. LEXIS 38 (1899).

Claim by husband against wife’s estate was properly disallowed where the only evidence was his testimony of a contract with his wife, such evidence being excluded by this statute. Jones v. Probate Court, 25 R.I. 361 , 55 A. 881, 1903 R.I. LEXIS 81 (1903).

— Confidential Nature.

A communication between husband and wife did not lose its privileged character by virtue of the fact that it was made in the presence of others. Campbell v. Chace, 12 R.I. 333 , 1879 R.I. LEXIS 32 (1879).

Statements of husband and wife to each other are admissible when not of a confidential nature or likely to provoke marital discord. Bradley v. Quinn, 53 R.I. 349 , 166 A. 814, 1933 R.I. LEXIS 101 (1933).

— Subsequent Divorce.

Husband could not, even after divorce, testify to communications with wife during marriage. Robinson v. Robinson, 22 R.I. 121 , 46 A. 455, 1900 R.I. LEXIS 68 (1900).

— Waiver.

It is at least doubtful that a party can waive the protection given to communications between spouses. Rose v. Mitchell, 21 R.I. 270 , 43 A. 67, 1899 R.I. LEXIS 38 (1899).

This section could not be waived by the parties by failure to except to admission of testimony as to marital communications. Robinson v. Robinson, 22 R.I. 121 , 46 A. 455, 1900 R.I. LEXIS 68 (1900).

Property Rights.

Provisions of clause permitting husband and wife to testify in a civil cause involving their respective property rights applied only to suits involving rights accruing after its passage. Hartley v. Hartley, 27 R.I. 176 , 61 A. 144, 1905 R.I. LEXIS 62 (1905).

Collateral References.

Adverse presumption or inference based on party’s failure to produce or examine spouse — modern cases. 79 A.L.R.4th 694.

Alienation of affections, evidence in suit for, of confidential communications between husband and wife. 36 A.L.R. 1068.

“Communications” within testimonial privilege of confidential communications between husband and wife as including knowledge derived from observation by one spouse of acts of other spouse. 10 A.L.R.2d 1389.

Competency of one spouse to testify against other in prosecution for offense against child of both or either or neither. 119 A.L.R.5th 275.

Conversations between husband and wife relating to property or business as within rule excluding private communications between them. 4 A.L.R.2d 835.

Divorce on ground of cruelty, competency of husband or wife to testify in suit for. 70 A.L.R. 499.

Instruction, which neither affirms or denies jury’s right to draw unfavorable inference against a party invoking privilege against testimony of spouse. 131 A.L.R. 702.

Overhearing or seeing by third person of communication between husband and wife, effect of. 63 A.L.R. 107.

Testimonial privilege for confidential communications between relatives other than husband and wife — state cases. 62 A.L.R.5th 629.

Waiver of objection to testimony at one trial as affecting right to make objection at subsequent trial of same case. 79 A.L.R. 173.

9-17-14. Repealed.

History of Section. G.L. 1938, ch. 537, § 58; P.L. 1939, ch. 705, § 1; G.L. 1956, § 9-17-14 ; Repealed by P.L. 1987, ch. 381, § 4. Section 7 of P.L. 1987, ch. 381 provides that the repeal of this section by that Act shall take effect on the date that Rhode Island Rules of Evidence adopted by the Supreme Court take effect. Those Rules took effect October 1, 1987.

Compiler’s Notes.

Former § 9-17-14 concerned adverse parties as witnesses.

9-17-15. Effect of conviction for crime.

No person shall be deemed an incompetent witness because of his or her conviction of any crime, or sentence to imprisonment therefor; but shall be admitted to testify like any other witness, except that conviction or sentence for any crime or misdemeanor may be shown to affect his or her credibility.

History of Section. C.P.A. 1905, § 395; G.L. 1909, ch. 292, § 43; G.L. 1923, ch. 342, § 43; G.L. 1938, ch. 537, § 16; G.L. 1956, § 9-17-15 .

NOTES TO DECISIONS

In General.

The fair trial concept requires the trial justice to instruct the jury at the time a prior conviction is received into evidence that it is being admitted for the sole purpose of impeaching credibility and is otherwise without probative value. Mercurio v. Fascitelli, 107 R.I. 511 , 268 A.2d 427, 1970 R.I. LEXIS 802 (1970); State v. O'Brien, 122 R.I. 749 , 412 A.2d 231, 1980 R.I. LEXIS 1469 (1980).

Although the trial justice ought to have admonished the jury as to the purpose of evidence of prior convictions at the time the evidence was received on the record, the defendant was not prejudiced by a belated admonition during the charge to the jury. State v. Pope, 414 A.2d 781, 1980 R.I. LEXIS 1640 (1980), overruled in part, State v. Acquisto, 463 A.2d 122, 1983 R.I. LEXIS 1012 (1983).

A witness may be impeached by evidence of a prior conviction, regardless of the possible prejudice or of whether the conviction was for a crime relating to dishonesty or false statement. State v. Aptt, 441 A.2d 824, 1982 R.I. LEXIS 809 (1982).

Conflict of Laws.

In determining the admissibility of evidence that a witness has been convicted of a crime in another jurisdiction a trial court must follow the rules of evidence of the state in which the conviction occurred. Solomon v. Shepard Co., 61 R.I. 332 , 200 A. 993, 1938 R.I. LEXIS 74 (1938).

Defendant Testifying.

If the defendant in a criminal action takes the stand to testify in his own behalf the state may impeach his credibility by showing previous convictions of felonies. State v. McGuire, 15 R.I. 23 , 22 A. 1118, 1885 R.I. LEXIS 43 (1885).

When an accused voluntarily chooses to testify in his own behalf, the prosecution has the right to cross-examine him in respect to such testimony with the same latitude as would be exercised in the case of an ordinary witness regarding the circumstances connecting him with the alleged crime. State v. Wallace, 428 A.2d 1070, 1981 R.I. LEXIS 1106 (1981).

Where prosecution’s cross-examination of the defendant had ceased, but the trial court allowed a reopening of such cross-examination to allow the prosecution to impeach the defendant with prior convictions, this was not tantamount to calling defendant as the state’s witness nor was it an abuse of the trial court’s discretion. State v. Wallace, 428 A.2d 1070, 1981 R.I. LEXIS 1106 (1981).

As the prosecutor’s questions to defendant during cross-examination about his alleged prior crimes impermissibly introduced false evidence of his criminal conduct and improperly implied he was previously charged with a crime without an evidentiary basis for that suggestion, and the error was not harmless because the questions were significantly prejudicial to defendant, he was entitled to new trial. State v. Price, 68 A.3d 440, 2013 R.I. LEXIS 99 (2013).

Discretion of Court.

There is no hard and fast rule which requires the trial justice to sustain or overrule an objection to the testimony of a witness who had been convicted of an offense, on the grounds of alleged remoteness of the offense. The better rule is to leave this matter to the sound discretion of the trial justice subject to be reviewed by the Supreme Court only for abuse of such discretion. Pedorella v. Hoffman, 91 R.I. 487 , 165 A.2d 721, 1960 R.I. LEXIS 125 (1960).

Nothing in the adoption of the Rhode Island Rules of Evidence alters the discretion of the trial justice to rule on the admissibility of prior convictions for impeachment purposes. State v. Mattatall, 586 A.2d 1061, 1991 R.I. LEXIS 23 (1991).

The trial court did not err in denying a defendant’s motion in limine to preclude the use of the defendant’s prior criminal record for impeachment purposes, because a strong showing of probative value is not necessary to warrant admissibility, only that the probative value substantially outweighs the prejudicial effect. The trial court is endowed with discretion when determining the admissibility of prior convictions in impeaching the credibility of witnesses. State v. Martinez, 651 A.2d 1189, 1994 R.I. LEXIS 294 (1994).

Impeachment.

Where conviction in district court was appealed to superior court such appeal automatically vacated the conviction in the district court and pending such appeal the conviction in the district court could not be used for impeachment purposes under this section. State v. Roderick, 121 R.I. 896 , 403 A.2d 1090, 1979 R.I. LEXIS 2037 (1979).

Even illegally obtained evidence may be admitted for impeachment purposes when a defendant gives testimony that may be construed as absolving himself from fault in a criminal case. State v. Dowell, 512 A.2d 121, 1986 R.I. LEXIS 516 (1986).

The trial justice did not err in allowing the prosecution to impeach the credibility of the defendant by reading the specific nature of two convictions for disorderly conduct. State v. Dowell, 512 A.2d 121, 1986 R.I. LEXIS 516 (1986).

A witness may be impeached by evidence of a prior conviction, regardless of whether there is possible prejudice or whether the conviction was for a crime involving dishonesty or false statement. State v. Moretti, 521 A.2d 1003, 1987 R.I. LEXIS 422 (1987).

A defendant’s bare assertion that he was impermissibly denied counsel or that he could not recall whether he was impermissibly denied counsel at the time he was convicted of prior offenses was not sufficient to prevent the use of the prior convictions for impeachment purposes. State v. Moretti, 521 A.2d 1003, 1987 R.I. LEXIS 422 (1987).

While it can certainly be said that Rule 609 of the Rhode Island Rules of Evidence was not intended to replace this section, there can be no question that it places the statute in a new light. However, nothing in the rule suggests or implies that decisions regarding the admissibility of prior convictions for impeachment purposes are no longer discretionary matters for the trial justice to decide. State v. Maxie, 554 A.2d 1028, 1989 R.I. LEXIS 17 (1989).

Where the defendant had committed at least four criminal offenses from 1980 through 1995, which the trial justice presumably determined to be sufficient to establish a continuing period of misconduct, it was not an abuse of discretion to rule that the state could use the prior convictions to impeach the defendant, should he take the stand, since those convictions suggested a pattern of criminal activity not wholly unrelated to the case at hand. State v. Walsh, 731 A.2d 696, 1999 R.I. LEXIS 119 (1999).

Introduction of Evidence.

It is proper to examine the witness himself as to former convictions of crime. State v. Ellwood, 17 R.I. 763 , 24 A. 782, 1892 R.I. LEXIS 79 (1892).

Mistrial.

Where, after defendant had admitted on cross-examination nine convictions, the prosecutor asked him if such convictions did not total ten, to which question the court sustained defendant’s objection, it was not error to deny defendant’s motion for a mistrial. State v. McCartin, 106 R.I. 674 , 262 A.2d 826, 1970 R.I. LEXIS 973 (1970).

Nolo Contendere.

Payment by defendant of a fine by way of settlement of a prior nuisance proceeding following plea of nolo contendere could not be introduced into evidence where there was no conviction or sentence. State v. Conway, 20 R.I. 270 , 38 A. 656, 1897 R.I. LEXIS 106 (1897).

Sentence to imprisonment for crime may be shown to affect credibility, even though the sentence was based on a plea of nolo contendere. State v. Vanasse, 42 R.I. 278 , 107 A. 85, 1919 R.I. LEXIS 31 (1919).

It was proper for district attorney to question defendant as to whether he had pleaded nolo contendere to an indictment and paid a fine. Fisher v. United States, 8 F.2d 978, 1925 U.S. App. LEXIS 3417 (1st Cir. 1925), cert. denied, 271 U.S. 666, 46 S. Ct. 482, 70 L. Ed. 1140, 1926 U.S. LEXIS 736 (1926).

Offenses Within Statute.

Under the provisions of this section a witness may be asked whether he has been convicted of or sentenced for any crime and the statute does not limit the evidence to infamous crimes or misdemeanors. Brown v. Howard, 43 R.I. 571 , 114 A. 11, 1921 R.I. LEXIS 31 (1921).

In a personal injury action arising out of an automobile accident, defendant’s prior convictions for traffic violations, including speeding, although unrelated to his honesty, should nonetheless have been admitted to impeach his credibility pursuant to this section. Mercurio v. Fascitelli, 107 R.I. 511 , 268 A.2d 427, 1970 R.I. LEXIS 802 (1970).

— Finality of Conviction.

The word “conviction” as used in this section means any conviction, whether final or not, and the pendency of an appeal does not bar the use of a conviction for the purpose of impeachment. State v. Rollins, 116 R.I. 528 , 359 A.2d 315, 1976 R.I. LEXIS 1303 (1976).

— Plea of Nolo Contendere.

A plea of nolo contendere followed by probation is not a conviction for purposes of impeaching a witness in an unrelated proceeding. State v. Young, 456 A.2d 739, 1983 R.I. LEXIS 813 (1983).

— Remoteness of Conviction.

Rejection for remoteness of four traffic convictions occurring less than three years prior to the day of the trial where they were offered into evidence would have been a clear abuse of discretion. Mercurio v. Fascitelli, 107 R.I. 511 , 268 A.2d 427, 1970 R.I. LEXIS 802 (1970).

Where evidence of prior convictions was not inadmissible for being too remote at the original trial, obviously this same evidence should not be rejected at a retrial on remoteness grounds. Mercurio v. Fascitelli, 116 R.I. 237 , 354 A.2d 736, 1976 R.I. LEXIS 1271 (1976).

It is within the discretion of the trial judge to determine whether evidence of prior convictions for the purpose of impeachment should be excluded because of remoteness, and a criminal defendant may utilize the procedural device of a motion in limine for the exclusion of such evidence. State v. Bennett, 122 R.I. 276 , 405 A.2d 1181, 1979 R.I. LEXIS 2157 (1979).

Whenever a party seeks to impeach a witness by evidence of a prior conviction, it is incumbent on the trial court, sua sponte, to consider whether the conviction is too remote in time to be of any present probative value. State v. O’Brien, 122 R.I. 749 , 412 A.2d 231 (1980). In accord with fourth paragraph in bound volume. See State v. Lariviere, 527 A.2d 648, 1987 R.I. LEXIS 518 (1987).

Remoteness is the sole crucial factor to be considered by a trial court when an effort is made to impeach a witness’ credibility by evidence of his prior involvement with the law. State v. Pope, 414 A.2d 781, 1980 R.I. LEXIS 1640 (1980), overruled in part, State v. Acquisto, 463 A.2d 122, 1983 R.I. LEXIS 1012 (1983).

Remoteness is not measured solely by the passage of time; a trial court can take into account convictions intervening between the past conviction and the crime for which the defendant is being tried, since the factfinder has a right to consider whether one who repeatedly refuses to comply with the law is more likely to ignore the obligation of truthfulness than a law-abiding citizen. State v. Pope, 414 A.2d 781, 1980 R.I. LEXIS 1640 (1980), overruled in part, State v. Acquisto, 463 A.2d 122, 1983 R.I. LEXIS 1012 (1983).

A 1974 conviction was not too remote to be admitted to impeach the defendant at trial in 1980. State v. Aptt, 441 A.2d 824, 1982 R.I. LEXIS 809 (1982).

Remoteness is the sole basis upon which a trial justice can prohibit the use of a prior conviction of any crime or misdemeanor to impeach a witness’ credibility. State v. Lariviere, 527 A.2d 648, 1987 R.I. LEXIS 518 (1987).

While admission, to impeach a defendant charged with murder, of a 22-year-old conviction for disorderly conduct was error, the court must further determine whether the error was prejudicial, denying a fair trial. State v. Powell, 533 A.2d 530, 1987 R.I. LEXIS 561 (1987).

Trial justice does not abuse his discretion when he does not allow the defendant to impeach a witness through the use of a prior criminal conviction, where the conviction occurred approximately thirteen years prior to the trial, and, except for a single traffic offense, driving without a license, the witness has not been convicted of a crime in the intervening years. State v. Wilson, 568 A.2d 764, 1990 R.I. LEXIS 8 (1990).

Remoteness of a prior conviction is not measured solely by the passage of time. The trial justice must balance the remoteness of the conviction, the nature of the crime, and the defendant’s disdain for the law as represented by the extent of his prior criminal record, to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. State v. Mattatall, 586 A.2d 1061, 1991 R.I. LEXIS 23 (1991).

Previous Arrest.

Arrest on a criminal charge not followed by conviction or sentence cannot be shown to affect credibility. State v. Christofaro, 70 R.I. 57 , 37 A.2d 163, 1944 R.I. LEXIS 17 (1944).

The credibility of a witness may not be impeached merely by a showing of an arrest or criminal accusation. State v. Sepe, 122 R.I. 560 , 410 A.2d 127, 1980 R.I. LEXIS 1423 (1980).

Probation Order.

Probation order was a judgment of conviction, finally and conclusively adjudicating the witness’ guilt, and such a record is admissible to impeach his credibility. Pedorella v. Hoffman, 91 R.I. 487 , 165 A.2d 721, 1960 R.I. LEXIS 125 (1960).

Collateral References.

Impeachment or cross-examination of prosecuting witness in sexual offense trial by showing that prosecuting witness threatened to make similar charges against other persons. 71 A.L.R.4th 448.

Impeachment or cross-examination of prosecuting witness in sexual offense trial by showing that similar charges were made against other persons. 71 A.L.R.4th 469.

Propriety of using prior conviction for drug dealing to impeach witness in criminal trial. 37 A.L.R.5th 319.

9-17-16. Repealed.

History of Section. C.P.A. 1905, § 390; G.L. 1909, ch. 292, § 38; G.L. 1923, ch. 342, § 38; G.L. 1938, ch. 537, § 18; G.L. 1956, § 9-17-16 ; Repealed by P.L. 1987, ch. 381, § 4. Section 7 of P.L. 1987, ch. 381 provides that the repeal of this section by that Act shall take effect on the date that Rhode Island Rules of Evidence adopted by the Supreme Court take effect. Those Rules took effect October 1, 1987.

Compiler’s Notes.

Former § 9-17-16 concerned court’s power to order oral examination of witnesses.

9-17-17. Cross-examination not a waiver of exception.

Where the testimony of a witness upon any subject, at any trial or hearing, is admitted by the court, and exception thereto is taken, the cross-examination of the witness upon the subject, by the party excepting thereto, shall not be considered a waiver of the exception.

History of Section. C.P.A. 1905, § 4053/4; P.L. 1909, ch. 418, § 1; G.L. 1923, ch. 342, § 54; G.L. 1938, ch. 537, § 19; G.L. 1956, § 9-17-17 .

9-17-18. Certificate of days and mileage as prerequisite to payment of fees.

Every witness, previous to his or her obtaining any fee, except the amount which, in certain cases, must be tendered to him or her before he or she can be compelled to attend, shall give a certificate to the court wherein he or she has attended, certifying the number of days he or she has attended and the number of miles he or she has traveled; which certificate shall be subject to the examination of the court, and, if question arises, such allowance shall be made thereon as shall be lawfully due.

History of Section. C.P.A. 1905, § 369; G.L. 1909, ch. 292, § 15; G.L. 1923, ch. 342, § 15; G.L. 1938, ch. 537, § 7; G.L. 1956, § 9-17-18 .

Collateral References.

Allowance of mileage or witness fees with respect to witnesses who were not called to testify or not permitted to do so when called. 22 A.L.R.3d 675.

Contract for extra compensation, validity of. 16 A.L.R. 1357; 41 A.L.R. 1322; 45 A.L.R. 1423.

9-17-19 — 9-17-21. Repealed.

History of Section. C.P.A. 1905, §§ 370-372; G.L. 1909, ch. 292, §§ 18-20; G.L. 1923, ch. 342, §§ 18-20; G.L. 1938, ch. 537, §§ 20-22; G.L. 1956, §§ 9-17-19 — 9-17-21; P.L. 1965, ch. 55, § 31; P.L. 1972, ch. 169, § 6; P.L. 1979, ch. 373, § 6; Repealed by P.L. 1987, ch. 381, § 4. Section 7 of P.L. 1987, ch. 381 provides that the repeal of this section by that Act shall take effect on the date that Rhode Island Rules of Evidence adopted by the Supreme Court take effect. Those Rules took effect October 1, 1987.

Compiler’s Notes.

Former §§ 9-17-19 — 9-17-21 concerned appointment of, investigations, reports by experts and physical examinations.

9-17-22. Expert fees as costs.

Fees of experts, except as provided in the Rules of Evidence, shall not be allowed as part of the costs in any case in excess of the fees allowed for ordinary witnesses.

History of Section. C.P.A. 1905, § 373; G.L. 1909, ch. 292, § 21; G.L. 1923, ch. 342, § 21; G.L. 1938, ch. 537, § 23; G.L. 1956, § 9-17-22 ; P.L. 1997, ch. 326, § 82.

Collateral References.

Amount of fees allowable to examiners of questioned documents or handwriting experts for serving and testifying. 86 A.L.R.2d 1283.

Fees of expert witness appointed by trial court in civil case. 95 A.L.R.2d 390.

9-17-23. Privileged communications to clergy.

In the trial of every cause, both civil and criminal, no member of the clergy or priest shall be competent to testify concerning any confession made to him or her in his or her professional character in the course of discipline enjoined by the church to which he or she belongs, without the consent of the person making the confession. No duly ordained minister of the gospel, priest, or rabbi of any denomination shall be allowed in giving testimony to disclose any confidential communication, properly entrusted to him or her in his or her professional capacity, and necessary and proper to enable him or her to discharge the functions of his or her office in the usual course of practice or discipline, without the consent of the person making the communication.

History of Section. P.L. 1960, ch. 109, § 1.

NOTES TO DECISIONS

Applicability.

A hearing justice erred when she granted an application for postconviction relief based on ineffective assistance of counsel because of counsel’s failure to object, under R.I. Gen. Laws § 9-17-23 , to certain portions of pastors’ testimony. The clergy privilege did not apply to a pastor who was not acting in that capacity; even if counsel was deficient by not raising the privilege with respect to portions of another pastor’s testimony, there was ample evidence sufficient for a jury to convict the applicant. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (2016).

Whether or not the presence of third parties destroyed the clergy privilege under R.I. Gen. Laws § 9-17-23 , in this instance, the confidante was not acting in the capacity of a pastor; any information he received was not properly entrusted to him in the clergy capacity, nor was it necessary and proper to enable him to discharge the functions of his office in the usual course of practice or discipline. The meeting was set up to explore therapy and was not conducted in the confidante’s professional capacity as a pastor of a church; thus, the privilege did not apply to these discussions. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (2016).

Collateral References.

Who are “clergy” or like within privilege attaching to communications to clergy members or spiritual advisers. 101 A.L.R.5th 619.

9-17-24. Privileged communications to and information obtained by health care providers.

In every legal action, both civil and criminal, no health care provider shall be competent to testify concerning any information obtained about a patient, nor shall he or she be required to produce any documentary evidence obtained about a patient, in the course of the customary professional health care relationship, without the consent of the patient, his or her legal guardian, or, if the patient is deceased, his or her next-of-kin, executor, or administrator. No health care provider shall be allowed in giving testimony to disclose any confidential communication or health care information, properly entrusted to him or her in his or her professional capacity and within the customary health care relationship, and necessary and proper to enable him or her to discharge medical duties in the usual course of practice, without the consent of the patient, his or her legal guardian, or, if the patient is deceased, his or her next-of-kin, executor, or administrator. Notwithstanding the foregoing, a health care provider may be required to testify or produce documentary evidence regarding the medical condition of a patient:

  1. When a patient raises his or her own medical condition in a legal action;
  2. When a court determines that disclosure of health care information about a person is necessary to a determination of the perceptual capacity of that person as a witness in a legal proceeding and that information is unavailable from any source other than a health care provider;
  3. When a court orders or the parties to a legal action agree to a medical evaluation of a party or witness by a health care provider in order to facilitate the resolution of the legal action;
  4. When the question of the competence of a decedent is at issue before the court; or
  5. When consent is not required pursuant to chapter 37.3 of title 5; provided, however, that any such information shall not be admissible in any proceeding against the patient to whom the information pertains.

History of Section. P.L. 1986, ch. 341, § 1; P.L. 1989, ch. 503, § 1.

NOTES TO DECISIONS

Constitutionality.

The Privileged Communications Act violates Article 1, § 5, of the Rhode Island Constitution by denying the state the right to fully and fairly litigate its criminal prosecution of the defendant. State v. Almonte, 644 A.2d 295, 1994 R.I. LEXIS 228 (1994).

The Privileged Communications Act violates Article 5 of the Rhode Island Constitution as an unconstitutional intrusion upon the function of the judiciary. State v. Almonte, 644 A.2d 295, 1994 R.I. LEXIS 228 (1994).

Disclosure of Medical Records.

Superior Courts may order health-care providers to disclose medical records regardless of whether the disclosure meets the requirements of subsections (1) through (5) of this section. State v. Almonte, 644 A.2d 295, 1994 R.I. LEXIS 228 (1994).

Effect of § 15-7-7 on Confidentiality.

In proceedings for the termination of parental rights, the privilege afforded the health-care provider or recipient by this section must yield to the direct, specific mandate set forth in § 15-7-7 , which tells the reader in clear and simple language that in parental-termination proceedings, a parent may not invoke any privilege of confidentiality relating to the parent’s illness or any maladies mentioned in § 15-7-7 . In re Rene B., 544 A.2d 137, 1988 R.I. LEXIS 98 (1988).

Collateral References.

Liability for interference with physician-patient relationship. 87 A.L.R.4th 845.

9-17-25. Privileged communication — Interpreter.

Whenever a sign language interpreter is used to facilitate a communication which is privileged pursuant to either statutory law or common law between parties, one or more of whom is hearing impaired, the sign language interpreter shall not be compelled to testify in any forum regarding that communication.

History of Section. P.L. 1990, ch. 281, § 1.

Chapter 18 Depositions

9-18-1. Officials authorized to take depositions.

Any justice of the supreme or superior or family court, justice of the peace, or notary public may take the deposition of any witness to be used in the trial of any civil suit, action, petition, or proceeding in which he or she is not interested, nor counsel, nor the attorney of either party, and which shall then be commenced or pending in this state, or in any other state, or in the District of Columbia, or in any territory, government, or country.

History of Section. C.P.A. 1905, § 374; G.L. 1909, ch. 292, § 22; G.L. 1923, ch. 342, § 22; G.L. 1938, ch. 539, § 1; G.L. 1956, § 19-18-1 ; P.L. 1966, ch. 1, § 9; P.L. 1979, ch. 373, § 7.

Rules of Court.

Depositions in district court taken only as provided by statute and only when deponent is likely to be unavailable as a witness, see Dist. Ct. R. Civ. P. Rule 26.

For rules relating to depositions and discovery in superior court, see Super. Ct. R. Civ. P. Rules 26-37.

Persons before whom depositions may be taken, see Super. Ct. R. Civ. P. Rule 28.

Subpoena for taking depositions, see Super. Ct. R. Civ. P. Rule 45(d).

Cross References.

Commissioners appointed by governor, § 42-31-1 et seq.

Costs on depositions, § 9-22-21 .

Divorce, separation, and annulment cases, § 9-19-26 .

Comparative Legislation.

Depositions generally:

Conn. Gen. Stat. § 52-148 et seq.

Mass. Ann. Laws ch. 233, § 24 et seq.

NOTES TO DECISIONS

Parties to Proceedings.

A party cannot require the adverse party to give his deposition prior to the trial. Tilden-Thurber Corp. v. Farnell, 43 R.I. 42 , 110 A. 399, 1920 R.I. LEXIS 36 (1920).

Tenants who were plaintiffs in action against landlord for losses from fire could not be summoned by landlord to give deposition in another action by fellow tenant for losses from same fire. Hamilton Co. v. Goring, 65 R.I. 459 , 16 A.2d 334, 1940 R.I. LEXIS 141 (1940).

A party may obtain a commission to take his own deposition. Rabinowitz v. Bayliss, 76 R.I. 479 , 72 A.2d 668, 1950 R.I. LEXIS 26 (1950).

Proceedings to Which Applicable.

A proceeding for admission to take the poor debtor’s oath is within this section, thus allowing the taking of depositions therein. In re Jenckes, 6 R.I. 18 , 1859 R.I. LEXIS 3 (1859).

Taking of deposition in workmen’s compensation case was governed by equity procedure rather than by this chapter. Warner v. Bay View Hotel, 74 R.I. 264 , 60 A.2d 488, 1948 R.I. LEXIS 79 (1948).

Collateral References.

Appearance to seek relief with respect to deposition as submission to jurisdiction. 111 A.L.R. 933.

Construction and effect of Rules 30(b), (d), 31(d), of Federal Rules of Civil Procedure and similar state statutes and rules, relating to preventing, limiting, or terminating the taking of depositions. 70 A.L.R.2d 685.

Copies of record or writings, attaching to depositions. 59 A.L.R. 530.

Dismissal of action for failure or refusal of plaintiff to obey court order for deposition. 4 A.L.R.2d 381.

Party’s right to use, as evidence in civil trial, his own testimony given upon interrogatories or depositions taken by opponent. 13 A.L.R.3d 1312.

Right of defendant in criminal contempt proceeding to obtain information by disposition. 33 A.L.R.5th 761.

Service of notice of time and place of examination of party witness as sufficient to require his attendance without subpoena for purpose of deposition. 112 A.L.R. 449.

9-18-2. Notice to adverse party.

Previous to the taking of any deposition within this state, the official authorized to take the deposition shall, in all cases, cause the adverse party or his or her attorney of record to be notified in writing of the time and place appointed for taking the depositions, so that he or she may attend and put interrogatories to the deponent if he or she think fit; provided, that if the person to be notified cannot be found and his or her residence is not known and he or she has no attorney of record, the moving party or his or her attorney may make affidavit of such facts before any justice of the superior court at any time, and thereupon the justice shall prescribe the method in which notice shall be given to the person.

History of Section. C.P.A. 1905, § 375; G.L. 1909, ch. 292, § 23; G.L. 1923, ch. 342, § 23; G.L. 1938, ch. 539, § 2; G.L. 1956, § 9-18-2 .

Rules of Court.

Notice required for taking deposition upon interrogatories, see Super. Ct. R. Civ. P. Rule 31(a).

Notice required for taking deposition upon oral examination, see Super. Ct. R. Civ. P. Rule 30(a).

NOTES TO DECISIONS

Names of Witnesses.

Notice to adverse party of time and place for taking of depositions without the state must include names of witnesses to be examined where such names did not appear in the commission. Bernhard Stern & Sons v. Chagnon, 39 R.I. 567 , 99 A. 592, 1917 R.I. LEXIS 5 (1917).

Notice of Motion.

A commission for the taking of a deposition may be granted ex parte and no notice need be given to the adverse party of a motion for such commission. Putnam v. MacLeod, 23 R.I. 373 , 50 A. 646, 1901 R.I. LEXIS 153 (1901).

Sufficiency of Notice.

Three days’ notice that a deposition would be taken at a place ten hours away by rail was sufficient. Guarantee Food Co. v. Burke, 43 R.I. 535 , 113 A. 789, 1921 R.I. LEXIS 23 (1921).

Waiver of Objections.

By attending the taking of a deposition the defendant waives an objection to the citation that it did not appear that the signer of the citation was acting as a commissioner. Otis H. Kelton & Co. v. Montaut, 2 R.I. 151 , 1852 R.I. LEXIS 20 (1852).

Collateral References.

Service of notice of time and place of examination of party witness as sufficient to require his attendance without subpoena for purposes of deposition. purposes of deposition. 112 A.L.R. 449; purposes of deposition. 112 A.L.R. 449.

9-18-3. Address and time of service of notice.

The notification issued by the magistrate, officer, or commissioner who shall take the deposition shall be directed to any proper officer, or to any impartial or disinterested person, and shall be served a reasonable time, not less than twenty-four (24) hours, exclusive of Sundays and legal holidays, before the time of taking the deposition.

History of Section. C.P.A. 1905, § 376; G.L. 1909, ch. 292, § 24; G.L. 1923, ch. 342, § 24; G.L. 1938, ch. 539, § 3; G.L. 1956, § 9-18-3 .

Cross References.

Legal holidays, § 25-1-1 et seq.

9-18-4. Service and return of notice.

The officer or other person charged with the service of the notification shall serve the notification by reading it to the party to be cited, if to be found; and if not to be found, by leaving a copy thereof at his or her usual place of abode; and shall, in his or her return, state the manner and time of the service; and whenever the service shall be made by any person other than a sworn officer, he or she shall verify the return, under oath, before some officer authorized to administer oaths.

History of Section. C.P.A. 1905, § 377; G.L. 1909, ch. 292, § 25; G.L. 1923, ch. 342, § 25; G.L. 1938, ch. 539, § 4; G.L. 1956, § 9-18-4 .

Cross References.

Deposition fees, § 9-29-3 .

NOTES TO DECISIONS

Out-Of-State Service.

Service of notification of taking of deposition out-of-state was sufficient if issued by notary public within reasonable time before taking, and served by disinterested person reading to the attorney of record of the other party, even though no copy was left. Duffee v. McGonigle, 51 R.I. 6 , 150 A. 78, 1930 R.I. LEXIS 34 (1930).

9-18-5. Manner of taking depositions outside state for use in state.

Depositions may be taken without this state to be used in the tribunals of this state, upon written notice conforming to the applicable rules of procedure, and shall be taken in the manner and with the formalities required by the law of this state or the state, district, territory, or country in which the deposition shall be taken; or shall be taken, if taken in any other state, district, or territory of the United States, before a commissioner appointed by the governor of this state, or before a judge, chancellor, justice of the peace, notary public, or civil magistrate of the state, district, or territory, respectively, or, if taken out of the United States, before a resident official of the United States, or, if the deponent is in the military, air, or naval service of the United States, before a colonel, lieutenant colonel, or major in the army or air force, or before any officer in the navy not below the grade and rank of lieutenant commander. And in every such case under the second method, the party causing the depositions to be taken shall notify the adverse party, or his or her attorney of record, of the time and place appointed for taking the deposition; and the notification issued by the official before whom the deposition is to be taken shall be served, in the manner as provided in § 9-18-4 , such reasonable time before the taking of the deposition as will give the adverse party a full opportunity to be present in person or by attorney and put interrogatories to the deponent, if he or she thinks fit.

History of Section. C.P.A. 1905, § 378; G.L. 1909, ch. 292, § 26; G.L. 1923, ch. 342, § 26; G.L. 1938, ch. 539, § 5; G.L. 1956, § 9-18-5 ; P.L. 1989, ch. 81, § 1; P.L. 1997, ch. 326, § 69.

Rules of Court.

Persons before whom depositions may be taken outside state, see Super. Ct. R. Civ. P. Rule 28(b).

NOTES TO DECISIONS

Order of Court.

Deposition of out-of-state witness taken under citation issued by justice of peace in that state was properly excluded on ground that it was not taken under order of court in which the case was pending. Gouin v. Ryder, 38 R.I. 31 , 94 A. 670, 1915 R.I. LEXIS 36 (1915).

Collateral References.

Permissibility and standards for use of audio recording to take deposition in state civil case. 13 A.L.R.4th 775.

Use, in federal criminal prosecution, of deposition of absent witness taken in foreign country, as affected by Federal Rule of Criminal Procedure 15(b) and (d) requiring presence of accused and that deposition be taken in manner provided in civil actions. 105 A.L.R. Fed. 537.

Use of videotape to take deposition for presentation at civil trial in state court. 66 A.L.R.3d 637.

9-18-6. Oath of deponent — Reduction of deposition to writing.

Every person, before deposing, shall be sworn to testify the truth, the whole truth, and nothing but the truth, and after giving the deposition shall subscribe his or her name thereto, if taken in longhand in the presence of the official before whom the deposition was taken. The deposition may be reduced to writing by the official or by any person, including the deponent, under his or her direction and in his or her presence, or may be reduced to writing stenographically either by the official or by some person in his or her presence and under his or her direction, sworn by the official to correctly take down in shorthand, the evidence as given; and in the latter case, a transcript thereof in longhand writing, typewriting, print, or other reproduction, sworn to by the person stenographically reporting the deposition and signed by the deponent, shall be received in evidence. The signature in the latter case shall be attested by the official taking the deposition or by some magistrate authorized to administer oaths whether in this state or elsewhere.

History of Section. C.P.A. 1905, § 379; G.L. 1909, ch. 292, § 27; G.L. 1923, ch. 342, § 27; G.L. 1938, ch. 539, § 6; G.L. 1956, § 9-18-6 .

Rules of Court.

For method of taking and recording deposition, see Super. Ct. R. Civ. P. Rule 30(c), (e).

NOTES TO DECISIONS

Oath of Officer.

An objection that the commissioner was not sworn when the deposition was taken will not be upheld where the commissioner was acting in his capacity as justice of the peace. Otis H. Kelton & Co. v. Montaut, 2 R.I. 151 , 1852 R.I. LEXIS 20 (1852).

Signature of Deposition.

Where the deponent signed transcribed reproduction of a shorthand writing to which her deposition had been reduced, there is no necessity that the deponent sign the shorthand deposition. Williams v. Smith, 29 R.I. 562 , 72 A. 1093, 1909 R.I. LEXIS 55 (1909).

It is not necessary that the transcription of the deposition be sworn to by the person stenographically reporting the same when that person is the officer taking the deposition. Williams v. Smith, 29 R.I. 562 , 72 A. 1093, 1909 R.I. LEXIS 55 (1909).

Collateral References.

Permissibility and standards for use of audio recording to take deposition in state civil case. 13 A.L.R.4th 775.

Use of videotape to take deposition for presentation at civil trial in state court. 66 A.L.R.3d 637.

9-18-7. Sealing and delivery to court.

The deposition, once taken, shall be retained by the magistrate, officer, or commissioner until he or she delivers the deposition with his or her own hand to the court for which it is taken, or shall, together with a certificate of its having been duly taken, be by the magistrate, officer, or commissioner, sealed up and directed to such court and delivered to the clerk thereof, and remain so sealed until opened by order of the court or of some justice thereof, or by the clerk with the consent of the parties; and any person may be compelled to appear and depose as provided in this chapter within this state, in the same manner as to appear and testify in court.

History of Section. C.P.A. 1905, § 380; G.L. 1909, ch. 292, § 28; G.L. 1923, ch. 342, § 28; G.L. 1938, ch. 539, § 7; G.L. 1956, § 9-18-7 ; P.L. 1997, ch. 326, § 83.

Rules of Court.

Certification and filing with clerk of court, see Super. Ct. R. Civ. P. Rule 30(f).

NOTES TO DECISIONS

Notice.

The certificate by the justice need not show when notice of the taking of the deposition was given if the sheriff’s return is annexed and does show the time of notice. Dean v. Millard, 1 R.I. 283 , 1850 R.I. LEXIS 3 (1850).

9-18-8. Deposition as evidence — Use of certified copy.

The deposition of any person taken pursuant to this chapter may be used as evidence in the trial of any judicial proceeding in any court, or town council, or before commissioners, masters in chancery, referees, or auditors, in which it shall have been taken to be used; and if the party who took the deposition shall neglect to produce or use it, the adverse party may use the original or a copy of the deposition, certified by the magistrate before whom it was taken.

History of Section. C.P.A. 1905, § 381; G.L. 1909, ch. 292, § 29; G.L. 1923, ch. 342, § 29; G.L. 1938, ch. 539, § 8; G.L. 1956, § 9-18-8 .

Rules of Court.

For use of depositions, see Super. Ct. R. Civ. P. Rule 26(d).

NOTES TO DECISIONS

Deceased Party.

The deposition of the plaintiff may be used at trial although he had died before trial and the action is being continued by his administratrix. King v. Patt, 13 R.I. 132 , 1880 R.I. LEXIS 59 (1880).

Deposition Taken by Opposite Party.

Plaintiff could have defendant’s deposition read in evidence where defendant did not do so. Brody v. Cooper, 45 R.I. 453 , 124 A. 2, 1924 R.I. LEXIS 24 (1924).

Parties Against Whom Used.

Deposition taken in trial of probate appeal could not be used in subsequent proceeding for construction of the will against a party who was not a party to the probate proceeding. Woodworth v. Baker, 48 R.I. 99 , 135 A. 606, 1927 R.I. LEXIS 18 (1927).

Rebuttal Evidence.

Where deposition is taken without notice to the adverse party, it is competent for the adverse party to put in proof contradictory statements made by the witness without previously interrogating him as to such statements. Hazard v. New York, B. & P. R. Co., 2 R.I. 62 , 1851 R.I. LEXIS 24 (1851).

Collateral References.

Admissibility of deposition of child of tender years. 30 A.L.R.2d 771.

Introduction of deposition by party other than the one at whose instance it was taken. 134 A.L.R. 212.

Waiver of incompetency of witness as to transactions with decedent by taking his deposition. 64 A.L.R. 1164; 107 A.L.R. 482; 159 A.L.R 411.

9-18-9. Court grant of commission to take deposition.

Any court may, on the motion of either party in any action, suit, or proceeding, civil or criminal, pending therein, in which a deposition may be used, or before any commissioners, referees, or auditors appointed by any such court or under a rule from it, grant a commission to take depositions according to law, whenever it may be necessary to prevent a failure or delay of justice, on such terms as such court, by general or special order, may direct; and the deposition, so taken, may be used in any state of the cause, on appeal or otherwise.

History of Section. C.P.A. 1905, § 382; G.L. 1909, ch. 292, § 30; G.L. 1923, ch. 342, § 30; G.L. 1938, ch. 539, § 9; G.L. 1956, § 9-18-9 .

Rules of Court.

Depositions, Super. Ct. R. Cr. P. Rule 15.

Persons before whom depositions may be taken, see Super. Ct. R. Civ. P. Rule 28.

NOTES TO DECISIONS

Case No Longer Pending.

Where at the time the petitioner moved for the commission, as well as when the commission was issued, the divorce petition had ceased to be pending, the issuing of said commission as nugatory and void and there was nothing to revoke. White v. White, 22 R.I. 602 , 48 A. 1038, 1901 R.I. LEXIS 67 (1901).

Notice.

Notice of motion for issuance of commission to take deposition was not required, as such motion is ex parte, and deposition was properly admitted where adverse party had reasonable notice of time and place appointed for the taking thereof. Putnam v. MacLeod, 23 R.I. 373 , 50 A. 646, 1901 R.I. LEXIS 153 (1901).

9-18-10. Time of taking deposition.

Depositions may be taken as provided in this chapter at any time; provided, however, that no deposition to be used in a jury trial shall be taken during the progress of the trial, except upon order of the justice presiding.

History of Section. C.P.A. 1905, § 383; G.L. 1909, ch. 292, § 31; G.L. 1923, ch. 342, § 31; G.L. 1938, ch. 539, § 10; G.L. 1956, § 9-18-10 .

9-18-11. Depositions for use in foreign tribunals.

Depositions may be taken in this state to be used on the trial of any cause pending in a tribunal of any other state, district, territory, or country, pursuant to chapter 18.1 of this title.

History of Section. C.P.A. 1905, § 384; G.L. 1909, ch. 292, § 32; G.L. 1923, ch. 342, § 32; G.L. 1938, ch. 539, § 11; G.L. 1956, § 9-18-11 ; P.L. 2019, ch. 190, § 2; P.L. 2019, ch. 241, § 2.

Compiler’s Notes.

P.L. 2019, ch. 190, § 2, and P.L. 2019, ch. 241, § 2 enacted identical amendments to this section.

9-18-12. Petition for perpetuation of testimony — Designation of person to take deposition.

Any person, desirous of perpetuating the testimony of any witness concerning any matter which is or may be the subject of litigation, as well before as after litigation is commenced, may present a petition in writing to any justice of the supreme or superior or family court, or to any justice of a district court, setting forth the reasons of his or her application, the name of the witness or witnesses, the subject matter of the controversy, and the names of all persons known to be interested therein, and praying that the deposition of the witness or witnesses may be taken; and thereupon if the justice be satisfied of the reasonableness of the petition, he or she shall designate some notary public or standing master in chancery to take the deposition, to whom the petition, with the order of designation thereon, shall be sent.

History of Section. C.P.A. 1905, § 385; G.L. 1909, ch. 292, § 33; G.L. 1923, ch. 342, § 33; G.L. 1938, ch. 539, § 12; G.L. 1956, § 9-18-12 ; P.L. 1979, ch. 373, § 7.

Rules of Court.

Depositions for perpetuation of testimony taken in accordance with statutes, see Super. Ct. R. Civ. P. Rule 27(a).

NOTES TO DECISIONS

Construction.

The plain language of this provision allows for the perpetuation of testimony of witnesses concerning any matter which is or may be the subject of litigation upon a trial justice’s determination concerning the reasonableness of such a petition, but does not permit discovery in any way beyond such testimonial parameters and does not operate as a substitute for discovery. Travelers Ins. Co. v. Hindle, 748 A.2d 256, 2000 R.I. LEXIS 79 (2000).

Statute of Limitations.

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 (1994).

Collateral References.

Production and inspection of premises, persons, and things in proceedings to perpetuate testimony. 98 A.L.R.2d 909.

Right to take depositions in perpetual remembrance for use in pending action, where statute does not expressly grant or deny such right. 70 A.L.R.2d 674.

9-18-13. Manner of taking deposition in perpetual memory.

The same formalities shall be observed as to notice, and the same methods may be employed, in the taking of depositions in perpetual memory as in the taking of other depositions, and the officer taking the deposition shall have the same power and authority as magistrates taking other depositions to compel any person to appeal and depose as provided in this chapter, within this state, in the same manner as to appear and testify in court. In case any person who is entitled to notice of the taking of the deposition shall be or reside outside of this state, the notice may be served by any disinterested person, and such other notice shall be given as the justice to whom the petition was presented may order.

History of Section. C.P.A. 1905, § 387; G.L. 1909, ch. 292, § 35; G.L. 1923, ch. 342, § 35; G.L. 1938, ch. 539, § 14; G.L. 1956, § 9-18-13 ; P.L. 1997, ch. 326, § 69.

Collateral References.

Perpetuation of testimony under Rule 27 of Federal Rules of Civil Procedure.60 A.L.R. Fed. 924.

9-18-14. Delivery and recording of deposition in perpetual memory.

The officer taking the deposition shall seal up and direct the deposition, together with the petition therefor, to the clerk of the superior court for the county in which some one of the persons notified of the taking of the deposition shall reside, or if no one of the persons so notified shall reside in this state, then the court for the county in which the person preferring the petition shall reside, and in case no one of the persons notified nor the person preferring the petition shall reside in this state, then in Providence county. The clerk shall, on receiving the deposition and petition, so directed and sealed up, on payment of legal fees for recording as in other cases, open and record the deposition and petition and the certificate of the taking of the deposition, in a book to be specifically kept for that purpose, noting on the deposition the time when he or she received it and the page of the book in which it is recorded, after which he or she shall deliver the deposition and petition to the party preferring the petition; and no deposition not so recorded shall be received as evidence in any court in the state, unless the deposition shall be opened in court at the time of the hearing of the cause in which it is used.

History of Section. C.P.A. 1905, § 388; G.L. 1909, ch. 292, § 36; G.L. 1923, ch. 342, § 36; G.L. 1938, ch. 539, § 15; G.L. 1956, § 9-18-14 .

9-18-15. Admissibility of deposition taken to perpetuate testimony.

The deposition, in case of the death of any deponent, his or her of unsound mind, his or her absence from this state, or inability to attend, may be used as evidence in any court in this state against any person who shall have had due notice of the taking of the deposition, his or her heirs, executors, or administrators.

History of Section. C.P.A. 1905, § 386; G.L. 1909, ch. 292, § 34; G.L. 1923, ch. 342, § 34; G.L. 1938, ch. 539, § 13; G.L. 1956, § 9-18-15 .

9-18-16. Use in bastardy cases.

Depositions taken in conformity to the provisions of this chapter may be used in the trial of any bastardy case.

History of Section. C.P.A. 1905, § 393; G.L. 1909, ch. 292, § 41; G.L. 1923, ch. 342, § 41; G.L. 1938, ch. 539, § 16; G.L. 1956, § 9-18-16 .

Chapter 18.1 Uniform Interstate Depositions and Discovery Act

9-18.1-1. Short title.

This chapter may be cited as the “Uniform Interstate Depositions and Discovery Act.”

History of Section. P.L. 2019, ch. 190, § 1; P.L. 2019, ch. 241, § 1.

Compiler’s Notes.

P.L. 2019, ch. 190, § 1, and P.L. 2019, ch. 241, § 1 enacted identical versions of this chapter.

9-18.1-2. Definitions.

As used in this chapter:

  1. “Foreign jurisdiction” means a state other than this state.
  2. “Foreign subpoena” means a subpoena issued under authority of a court of record of a foreign jurisdiction.
  3. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited-liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
  4. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
  5. “Subpoena” means a document, however denominated, issued under authority of a court of record requiring a person to:
    1. Attend and give testimony at a deposition;
    2. Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or
    3. Permit inspection of premises under the control of the person.

History of Section. P.L. 2019, ch. 190, § 1; P.L. 2019, ch. 241, § 1.

9-18.1-3. Issuance of subpoena.

  1. To request issuance of a subpoena under this section, a party shall submit a foreign subpoena to:
    1. A clerk of the superior court in the county in which discovery is sought to be conducted in this state; or
    2. A lawyer who is a member in good standing of the bar of this state. A request for the issuance of a subpoena under this act does not constitute an appearance in the courts of this state.
  2. When a party submits a foreign subpoena to a clerk of the superior court in this state, the clerk, in accordance with the court’s procedure, shall promptly issue a subpoena for service on the person to which the foreign subpoena is directed. When a party submits a subpoena to a lawyer who is a member in good standing of the bar of this state, the lawyer may issue a subpoena for service on the person to which the foreign subpoena is directed.
  3. A subpoena under subsection (b) of this section shall:
    1. Incorporate the terms used in the foreign subpoena;
    2. Contain or be accompanied by the names, addresses, telephone numbers, and email addresses of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel; and
    3. Otherwise be in a form that complies with the laws of this state.

History of Section. P.L. 2019, ch. 190, § 1; P.L. 2019, ch. 241, § 1.

9-18.1-4. Service of subpoena.

A subpoena issued under § 9-18.1-3 shall be served in compliance with the Rhode Island superior court rules of civil procedure.

History of Section. P.L. 2019, ch. 190, § 1; P.L. 2019, ch. 241, § 1.

9-18.1-5. Deposition, production, and inspection.

The Rhode Island superior court rules of civil procedure govern subpoenas issued under § 9-18.1-3 .

History of Section. P.L. 2019, ch. 190, § 1; P.L. 2019, ch. 241, § 1.

9-18.1-6. Application to court.

An application to the court for a protective order or to enforce, quash, or modify a subpoena issued under § 9-18.1-3 shall comply with the rules or statutes of this state and be submitted to the superior court in the county in which discovery is to be conducted.

History of Section. P.L. 2019, ch. 190, § 1; P.L. 2019, ch. 241, § 1.

9-18.1-7. Uniformity of application and construction.

In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

History of Section. P.L. 2019, ch. 190, § 1; P.L. 2019, ch. 241, § 1.

9-18.1-8. Application to pending actions.

This chapter applies to requests for discovery in cases pending on July 15, 2019.

History of Section. P.L. 2019, ch. 190, § 1; P.L. 2019, ch. 241, § 1.

Chapter 19 Evidence

9-19-1, 9-19-2. Repealed.

History of Section. C.P.A. 1905, § 401; G.L. 1909, ch. 292, § 49; G.L. 1923, ch. 342, § 49; P.L. 1928, ch. 1161, § 1; G.L. 1938, ch. 538, § 3; P.L. 1940, ch. 939, § 7; G.L. 1956, §§ 9-19-1 , 9-19-2; Repealed by P.L. 1987, ch. 381, § 5. Section 7 of P.L. 1987, ch. 381 provides that the repeal of this section by that Act shall take effect on the date that Rhode Island Rules of Evidence adopted by the Supreme Court take effect. Those Rules took effect October 1, 1987.

Compiler’s Notes.

Former §§ 9-19-1 and 9-19-2 concerned statutes, decisions and ordinances of other jurisdictions.

9-19-3. Judicial notice of law of other states.

Every court of this state shall take judicial notice of the common law and statutes of every state, territory, and other jurisdiction of the United States.

History of Section. P.L. 1940, ch. 939, § 1; G.L. 1956, § 9-19-3 .

Collateral References.

Federal constitutional provisions as to full faith and credit and conflict of laws as to rights not based on judgment. 74 A.L.R. 710; 100 A.L.R. 1143; 134 A.L.R. 1472; 137 A.L.R. 965.

Federal constitutional provisions as to full faith and credit as affecting right of court of forum, when entertaining jurisdiction of action on foreign contract or cause of action, to refuse to give effect to provisions of the contract valid by its proper law or to other rights or obligations available under that law. 92 A.L.R. 932.

Full faith and credit “last-in-time” rule as applicable to sister state divorce or custody judgment which is inconsistent with the forum state’s earlier judgment. 36 A.L.R.5th 527.

Judgment of sister state confessed under warrant of attorney, necessity in action on, of proving law of sister state permitting such judgment. 155 A.L.R. 921.

Manner and sufficiency of pleading foreign law. 134 A.L.R. 598.

Necessity of pleading foreign law under Uniform Judicial Notice of Foreign Law Act. 23 A.L.R.2d 1437.

Presumption as to foreign law as affected by Uniform Judicial Notice of Foreign Law Act. 23 A.L.R.2d 1437.

Reception of evidence to contradict or rebut matters judicially noticed. 45 A.L.R.2d 1169.

9-19-4. Information as to foreign law.

The court may inform itself of such laws in such manner as it may deem proper, and the court may call upon counsel to aid it in obtaining the information.

History of Section. P.L. 1940, ch. 939, § 2; G.L. 1956, § 9-19-4 .

9-19-5. Determination made by court — Review.

The determination of foreign laws shall be made by the court and not by the jury, and shall be reviewable.

History of Section. P.L. 1940, ch. 939, § 3; G.L. 1956, § 9-19-5 ; P.L. 1997, ch. 326, § 21.

9-19-6. Evidence of foreign law.

Any party may also present to the trial court any admissible evidence of foreign laws, but, to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties either in the pleadings or otherwise.

History of Section. P.L. 1940, ch. 939, § 4; G.L. 1956, § 9-19-6 ; P.L. 1997, ch. 326, § 21.

NOTES TO DECISIONS

Notice.

Notice by the defendant that he was relying on the law of another state, an allegation in the plea that the accident occurred in such other state, and allegations of such facts as would constitute a defense in the other state, were sufficient notice to enable the defendant to invoke this statute. Kennedy v. Lenzine, 76 R.I. 231 , 69 A.2d 231, 1949 R.I. LEXIS 108 (1949).

9-19-7. Law of foreign countries.

The law of a jurisdiction other than those referred to in § 9-19-3 shall be an issue for the court, but shall not be subject to the foregoing provisions concerning judicial notice.

History of Section. P.L. 1940, ch. 939, § 5; G.L. 1956, § 9-19-7 .

9-19-8. Uniformity of construction.

Sections 9-19-2 — 9-19-7 shall be so interpreted and construed as to effectuate their general purpose to make uniform the law of those states which enact them.

History of Section. P.L. 1940, ch. 1939, § 6; G.L. 1956, § 9-19-8 .

9-19-9. Repealed.

History of Section. G.L. 1909, ch. 292, § 54; P.L. 1915, ch. 1259, § 1; G.L. 1923, ch. 342, § 55; G.L. 1938, ch. 538, § 4; G.L. 1956, § 9-19-9 ; Repealed by P.L. 1987, ch. 381, § 5. Section 7 of P.L. 1987, ch. 381 provides that the repeal of this section by that Act shall take effect on the date that Rhode Island Rules of Evidence adopted by the Supreme Court take effect. Those Rules took effect October 1, 1987.

Compiler’s Notes.

Former § 9-19-9 concerned acts and writings of decedents in actions against estates.

9-19-10. Entries and memoranda of decedent introduced for successor in title to decedent.

Whenever the entries and written memoranda of a deceased person would be admissible in favor of his or her representatives, such entries and memoranda may be admitted in favor of any person claiming title under or from the decedent.

History of Section. G.L. 1909, ch. 292, § 55; P.L. 1915, ch. 1259, § 1; G.L. 1923, ch. 342, § 56; G.L. 1938, ch. 538, § 5; G.L. 1956, § 9-19-10 .

9-19-11. Repealed.

History of Section. G.L. 1923, ch. 342, § 57; P.L. 1927, ch. 1048, § 1; G.L. 1938, ch. 538, § 6; G.L. 1956, § 9-19-11 ; Repealed by P.L. 1987, ch. 381, § 5. Section 7 of P.L. 1987, ch. 381 provides that the repeal of this section by that Act shall take effect on the date that Rhode Island Rules of Evidence adopted by the Supreme Court took effect. Those Rules take effect October 1, 1987.

Compiler’s Notes.

Former § 9-19-11 concerned declarations of decedents made in good faith.

9-19-12. Statements and releases by patients in personal injury cases.

Except as provided below, no settlement or general release or statement in writing signed by any person confined in a hospital or sanitarium as a patient with reference to any personal injuries for which the person is confined in the hospital or sanitarium shall be admissible in evidence, used or referred to in any manner, at the trial of any action to recover damages for personal injuries or consequential damages, so called, resulting therefrom, which statement, settlement, or general release was obtained within fifteen (15) days after injuries were sustained, and the settlement or release shall be null and void unless at least five (5) days prior to the obtaining or procuring of the general release or statement the injured party had signified in writing his or her willingness that the general release or statement be given. This section shall not apply to statements or releases obtained by police officers or inspectors of motor vehicles in the performance of their duty, from members of the family of the person, or by or on behalf of his or her attorney.

History of Section. P.L. 1956, ch. 3712, § 1; G.L. 1956, § 9-19-12 .

9-19-12.1. Releases for personal injuries.

No person, firm, or corporation whose interest is adverse to that of a person receiving personal injuries as a result of a tortious act shall negotiate any contract, written or oral, or any settlement to release the person, firm, or corporation from liability, within thirty (30) days from the date of the tortious act. Any contract settlement or release obtained in violation of this section shall be voidable at the option of the releasor upon restoration of the consideration.

History of Section. P.L. 1962, ch. 207, § 1.

Comparative Legislation.

Release of personal injuries, validity:

Conn. Gen. Stat. § 52-572a.

Mass. Ann. Laws ch. 271, § 44.

9-19-13, 9-19-14. Repealed.

History of Section. G.L. 1923, ch. 342, § 49; P.L. 1928, ch. 1161, § 1; G.L. 1938, ch. 538, §§ 1, 15; P.L. 1948, ch. 2087, § 1; G.L. 1956, §§ 9-19-13 , 9-19-14; P.L. 1961, ch. 148, § 1; P.L. 1972, ch. 138, § 1; Repealed by P.L. 1987, ch. 381, § 5. Section 7 of P.L. 1987, ch. 381 provides that the repeal of this section by that Act shall take effect on the date that Rhode Island Rules of Evidence adopted by the Supreme Court take effect. Those Rules took effect October 1, 1987.

Compiler’s Notes.

Former §§ 9-19-13 and 9-19-14 concerned books entries made in the regular course of business and photographic reproductions of records and documents.

9-19-15. Stenographic transcripts of testimony in superior court.

Transcripts from stenographic notes of testimony duly taken in the superior court or the family court, under statutory authority, verified by the certificate of the stenographer taking the testimony, and allowed by the court, shall be admissible as evidence that the testimony was given, whenever proof of the testimony is otherwise competent.

History of Section. C.P.A. 1905, § 394; G.L. 1909, ch. 292, § 42; G.L. 1923, ch. 342, § 52; G.L. 1938, ch. 538, § 2; G.L. 1956, § 9-19-15 ; P.L. 1961, ch. 73, § 5.

Cross References.

Stenographic transcripts in superior court, § 8-5-3 et seq.

9-19-16 — 9-19-18. Repealed.

History of Section. C.P.A. 1905, §§ 398-400; G.L. 1909, ch. 292, §§ 46-48; G.L. 1923, ch. 342, §§ 46-48; G.L. 1938, ch. 538, §§ 7, 13, 14; P.L. 1946, ch. 1770, § 1; P.L. 1948, ch. 2003, § 1; G.L. 1956, §§ 9-19-16 — 9-19-18; Repealed by P.L. 1987, ch. 381, § 5. Section 7 of P.L. 1987, ch. 381 provides that the repeal of this section by that Act shall take effect on the date that Rhode Island Rules of Evidence adopted by the Supreme Court take effect. Those Rules took effect October 1, 1987.

Compiler’s Notes.

Former §§ 9-19-16 — 9-19-18 concerned instruments requiring attestation, comparison of writings, and copies extracted from historical society libraries.

9-19-19. Finding of presumed death under federal Missing Persons Act.

A written finding of presumed death, made by the secretary of the army, the secretary of the navy, the secretary of the air force, or other officer or employee of the United States authorized to make such finding, pursuant to the federal Missing Persons Act, 5 U.S.C. § 5561 et seq., as now or hereafter amended, or a duly certified copy of such finding shall be received in any court, office, or other place in this state as prima facie evidence of the death of the person therein found to be dead, and the date, circumstances, and place of his or her disappearance.

History of Section. P.L. 1946, ch. 1709, § 1; G.L. 1956, § 9-19-19 .

Collateral References.

Absence generally, presumption from. 44 A.L.R. 1488.

Evidence, presumption of death as. 115 A.L.R. 404.

9-19-20. Other documents under Missing Persons Act.

An official written report or record, or duly certified copy thereof, that a person is missing, missing in action, interned in a foreign country, or beleaguered, besieged, or captured by a hostile force, or is dead, or is alive, made by any officer or employee of the United States authorized by the act referred to in § 9-19-19 or by any other law of the United States to make the report or record shall be received in any court, office, or other place in this state as prima facie evidence that the person is missing, missing in action, interned in a foreign country, or beleaguered, besieged, or captured by a hostile force, or is dead, or is alive, as the case may be.

History of Section. P.L. 1946, ch. 1709, § 2; G.L. 1956, § 9-19-20 .

9-19-21. Prima facie validity of federal findings and certified copies.

For the purposes of §§ 9-19-19 and 9-19-20 , any finding, report, or record, or duly certified copy thereof, purporting to have been signed by such an officer or employee of the United States as is described in those sections, shall prima facie be deemed to have been signed and issued by such an officer or employee pursuant to law, and the person signing the report or record shall prima facie be deemed to have acted within the scope of his or her authority. If a copy purports to have been certified by a person authorized by law to certify the report or record, the certified copy shall be prima facie evidence of his or her authority so to certify.

History of Section. P.L. 1946, ch. 1709, § 3; G.L. 1956, § 9-19-21 .

9-19-22. Severability.

If any provision of §§ 9-19-19 9-19-21 or the application thereof to any person or circumstance be held invalid, that invalidity shall not affect any other provision or application of those sections which can be given effect without the invalid provision or application, and to this end the provisions of those sections are declared to be severable.

History of Section. P.L. 1946, ch. 1709, § 4; G.L. 1956, § 9-19-22 .

9-19-23, 9-19-24. Repealed.

History of Section. C.P.A. 1905, §§ 402, 403; G.L. 1909, ch. 292, §§ 50, 51; G.L. 1923, ch. 342, §§ 50, 51; G.L. 1938, ch. 538, §§ 8, 9; G.L. 1956, §§ 9-19-23 , 9-19-24; Repealed by P.L. 1965, ch. 55, § 32, effective January 10, 1966.

9-19-25. Illegally seized evidence inadmissible.

In the trial of any action in any court of this state, no evidence shall be admissible where the evidence shall have been procured by, through, or in consequence of any illegal search and seizure as prohibited in § 6 of article 1 of the constitution of the state of Rhode Island.

History of Section. G.L. 1938, ch. 538, § 16; P.L. 1955, ch. 3590, § 1; G.L. 1956, § 9-19-25 .

NOTES TO DECISIONS

In General.

Where arrest was made and warrant issued only on suspicion, evidence obtained from the search should have been suppressed. State v. Dufour, 99 R.I. 120 , 206 A.2d 82, 1965 R.I. LEXIS 405 (1965).

Evidence seized in a search under authority of a warrant issued upon an affidavit of information and belief without disclosing the source of information or reason for belief was obtained by illegal search and seizure and should be suppressed. State v. Le Blanc, 100 R.I. 523 , 217 A.2d 471, 1966 R.I. LEXIS 472 (1966).

Where evidence admission is no violation of Art. 1, Sec. 6 of R.I. Const., this section not violated. State v. Davis, 105 R.I. 247 , 251 A.2d 394, 1969 R.I. LEXIS 746 (1969).

Bail Revocation Hearing.

Because a bail revocation is in no sense a “trial,” this section is inapplicable to such a proceeding. Bridges v. Superior Court, 121 R.I. 101 , 396 A.2d 97, 1978 R.I. LEXIS 585 (1978).

Extra-Judicial Arrest.

Police detectives’ conduct in arresting defendant outside their jurisdiction was not egregious enough to justify exclusion of probative evidence stemming from the extra-jurisdictional arrest. The statutory exclusionary rule, R.I. Gen. Laws § 9-19-25 , did not mandate suppression of the evidence obtained in this case. State v. Morris, 92 A.3d 920, 2014 R.I. LEXIS 69 (2014).

Probation Revocation Hearing.

Evidence obtained as the result of an illegal search and seizure may be used at a probation revocation hearing. State v. Spratt, 120 R.I. 192 , 386 A.2d 1094, 1978 R.I. LEXIS 655 (1978).

Relation to Fourth Amendment.

This section does nothing more than implement the language of Art. 1, Sec. 6, R.I. Const. Because that language is identical to that of the Fourth Amendment, the Supreme Court is not required to afford a defendant greater rights than those he is afforded under the Fourth Amendment. State v. Mattatall, 603 A.2d 1098, 1992 R.I. LEXIS 32 (1991), cert. denied, 506 U.S. 838, 113 S. Ct. 117, 121 L. Ed. 2d 74, 1992 U.S. LEXIS 5879 (1992).

Collateral References.

Admissibility in evidence of sound recording as affected by hearsay and best evidence rules. 58 A.L.R.3d 598.

Corporation, illegally seized documents or other articles belonging to, use as evidence against corporate officers, employees or stockholders. 78 A.L.R. 343.

Criminal prosecutions, illegal search and seizure, admissibility of evidence obtained by.

Employee having control of article for employer, right of, to avail himself of rule which excludes evidence obtained by unlawful search and seizure. 86 A.L.R. 346.

“Fruit of the poisonous tree” doctrine, Excluding evidence derived from information gained in illegal search. 43 A.L.R.3d 385.

Information obtained by illegal wire tapping. 28 A.L.R.2d 1055.

Intercepting letter, telegram or telephone message, admissibility of evidence obtained by public officer. 53 A.L.R. 1485; 66 A.L.R. 397; 134 A.L.R. 614.

Omission or inaudibility of portions of sound recording as affecting its admissibility in evidence. 57 A.L.R.3d 746.

Recovery of property held by authorities as evidence for use in criminal case. 11 A.L.R. 681; 13 A.L.R. 1168.

Search and seizure: reasonable expectation of privacy in public restroom. 74 A.L.R.4th 508.

Sound recordings, means of obtaining as affecting admissibility.

9-19-26. Testimony in divorce, separation, and annulment proceedings.

In all cases of divorce, separation, and annulment of marriage, the testimony shall be given viva voce in open court; provided, however, that the family court may permit the taking of depositions in cases where the witnesses or parties are aged, infirm, or too ill to appear in court or for any other special cause.

History of Section. C.P.A. 1905, § 392; G.L. 1909, ch. 292, § 40; G.L. 1923, ch. 342, § 40; G.L. 1938, ch. 538, § 10; P.L. 1951, ch. 2738, § 1; G.L. 1956, § 9-19-26 ; impl. am. P.L. 1961, ch. 73, § 14.

Cross References.

Divorce proceedings, corroborating evidence, § 15-5-5 .

NOTES TO DECISIONS

Constitutionality.

This section represents an effort by the legislature to preserve the matrimonial bond; it is reasonable, not arbitrary; and there is a correlation between the persons dealt with and the public purposes sought to be achieved. It does not violate the equal protection clause, 14th Amendment, U.S. Constitution.Rheaume v. Rheaume, 107 R.I. 500 , 268 A.2d 437, 1970 R.I. LEXIS 801 (1970).

Applicability.

Depositions may be taken before a standing master in chancery without a special order of the court referring the matter to the master. Borda v. Borda, 44 R.I. 337 , 117 A. 362, 1922 R.I. LEXIS 48 (1922). (Decision prior to 1951 amendment.)

Where plaintiff brought action for divorce from bed and board against defendant residing in Massachusetts, who had previously obtained a divorce from her in Nevada in a proceeding she was notified of, but did not participate in; defendant, after making a special appearance to assert lack of jurisdiction of the Rhode Island family court on the basis of the Nevada divorce could not testify outside Rhode Island by deposition for the purpose of avoiding being served in Rhode Island with plaintiff’s process seeking temporary support and counsel and witness fees. Rheaume v. Rheaume, 107 R.I. 500 , 268 A.2d 437, 1970 R.I. LEXIS 801 (1970).

9-19-27. Evidence of charges for medical and hospital services and for prescriptions and orthopedic appliances — Evidence required from hospital medical records.

  1. This section is enacted primarily to relieve physicians and the other medical professionals defined herein who are associated with hospitals and other health care facilities from the hardship and inconvenience of attending court as witnesses, therefore in interpreting this section and the medical records exception to the hearsay rules of evidence in court or other related proceedings, the trial courts of this state shall liberally construe this section to admit what is presumptively reliable medical evidence presented by way of this statutory process without the necessity of calling numerous medical personnel as witnesses.
  2. In any proceeding commenced in any court, commission, or agency, an itemized bill and reports, whether originating within this state or any other state, including hospital or health care facility, medical records, relating to medical, dental, hospital services, prescriptions, or orthopedic appliances rendered to or prescribed for a person injured, and/or any report of any examination of the injured person, including, but not limited to, hospital medical records and written statements made by the physician or dentist whether contemporaneous with the treatment or not, subscribed and sworn to under the penalties of perjury by the physician, dentist, or authorized agent of the hospital or health care facility rendering the services or by the pharmacist or retailer of orthopedic appliances, shall be admissible as evidence of the fair and reasonable charge for the services and/or the necessity of the services or treatment, the diagnosis of the physician or dentist, the prognosis of the physician or dentist; the opinion of the physician or dentist as to proximate cause of the condition so diagnosed, and the opinion of the physician or dentist as to disability, incapacity or permanency, if any, proximately resulting from the condition so diagnosed. Such affidavit may incorporate by reference such other records or written statements as are relied upon by the affiant in reaching the opinions set forth in the affidavit, if of a type reasonably and customarily relied upon by such providers, and which shall thereby provide the necessary foundation for the record relied upon to be independently introduced as an exhibit in accordance with the terms herein.

    The authorized agent of the hospital or health care facility shall be deemed the proper agent to subscribe and swear to said written statements contained in its medical records as the authorized agent for physicians employed by said hospital or clinic, and rendering treatment to the patient during the course of his or her employment. Said records shall not be deemed inadmissible because the physician so employed by the hospital or health care facility has not subscribed to the affidavit.

    Provided, further, that written notice of the intention to offer the bill or report as such evidence, together with a copy thereof, has been given to the opposing party or parties, or to his or her or their attorneys, by mailing the notice by certified mail, return receipt requested, not less than ten (10) days before the introduction of the bill or report into evidence, and that an affidavit of the notice and the return receipt is filed with the clerk of the court forthwith after the receipt has been returned. Nothing contained in this section shall be construed to limit the right of any party to the action to summon or depose, at his or her own expense, the physician, dentist, pharmacist, retailer of orthopedic appliances, or agent of the hospital for the purpose of cross examination with respect to the bill, record, and report or to rebut the contents thereof, or for any other purpose, nor to limit the right of any party to the action to summon or depose any other person to testify in respect to the bill, record, and/or report or for any other purpose.

    The adverse party shall be entitled at the expense of the proponent of the affidavit to a reasonable opportunity for cross-examination, not to exceed one hour at the office of the physician or other expert witness. Additional time for cross-examination shall be at the adverse party’s expense. The expert witness fee provided by the proponent of the expert and the additional fee, if required on the part of the adverse party, may be included in the costs of the case payable to the prevailing party. The time and method of the payment or taxing of such costs shall be subject to the order of the trial court.

  3. The words “physician”, and “dentist” shall not include any person who is not licensed to practice as such under the laws of the jurisdiction within which the services were rendered, but shall include chiropodists, chiropractors, optometrists, osteopaths, physical therapists, psychologists, paramedics or rescue or emergency medical service personnel or ambulating services and other medical, mental health care or social work personnel licensed to practice under title 5 or under the laws of the jurisdiction within which the services were rendered; provided, that said chiropodists, chiropractors, optometrists, osteopaths, physical therapists, psychologists, and other medical, mental health care, or social work personnel subscribes to said statements designating his or her licensure, and specifying his or her authority to subscribe in said capacity.
  4. The word “hospital” shall mean any hospital required to incorporate under title 7, or which is in any way licensed or regulated by the laws of any other state, or by the laws and regulations of the United States, including hospitals of the veterans administration or similar type institutions, whether incorporated or not.
  5. The words “health care facility” includes those entities referred to in § 23-17-2(9) except to the extent that paramedic or rescue or emergency medical service personnel or ambulatory service are excluded.
  6. Any party objecting to the admitting into evidence of the affidavit shall file an objection specifying the grounds thereof within ten (10) days of receipt of the affidavit, or said objections are waived.
  7. Consistent with federal and state constitutional and statutory guarantees nothing in this section shall be construed so as to limit the right of a defendant in a criminal case to confront and cross examine witnesses.
  8. These provisions shall not apply to claims for personal injury or wrongful death filed against a licensed physician, hospital, clinic, health maintenance organization, professional service corporation providing health care services, dentist, or dental hygienist based on professional negligence.

History of Section. P.L. 1962, ch. 192, § 1; P.L. 1969, ch. 228, § 1; P.L. 1971, ch. 131, § 1; P.L. 1979, ch. 120, § 1; P.L. 1981, ch. 164, § 1; P.L. 1989, ch. 290, § 1; P.L. 1998, ch. 280, § 1; P.L. 2012, ch. 373, § 1; P.L. 2012, ch. 395, § 1.

Compiler’s Notes.

P.L. 2012, ch. 373, § 1, and P.L. 2012, ch. 395, § 1 enacted identical amendments to this section.

Law Reviews.

Legislation Survey Section: Evidence, see 4 R.W.U.L. Rev. 838 (1999).

Comparative Legislation.

Bills for medical and hospital bills — admissibility in tort action:

Mass. Ann. Laws ch. 233, § 79G.

NOTES TO DECISIONS

Constitutionality.

This section does not on its face violate due process or fundamental fairness to respondents by hindering cross-examination because it clearly considers the need to prevent the statute from being too broad-based or all-encompassing. It does not violate equal protection because corresponding concerns of each of the litigants are weighed and balanced by the trial justice in order to prevent manifest unfairness to a particular litigant. This section is also not unconstitutional as applied when the rights and interests of the parties to cross-examination are balanced, and any overriding concerns of a party are considered in order to prevent an unconstitutional application of the statute violating the rights of litigants. Martinez v. Kurdziel, 612 A.2d 669, 1992 R.I. LEXIS 171 (1992).

Admissibility of Blood-Alcohol Test Results.

In a prosecution for sexual assault, the trial justice’s decision to exclude the result of a blood-alcohol analysis of the victim’s blood on the night of the assault is proper, where, if the defendant had wanted the jury to know the results of the blood-alcohol-content test, he could have presented such evidence by introducing the medical record into evidence. Moreover, exclusion of the blood-alcohol content of the victim’s blood was not probative regarding the issue of the defendant’s guilt. State v. Griffin, 567 A.2d 796, 1989 R.I. LEXIS 170 (1989).

Affirmation and Oath.

As affidavits regarding plaintiff’s medical treatment were signed in the presence of a notary and stated that the truth of the factual statements containted therein were sworn to under oath, they were properly admitted in evidence under R.I. Gen. Laws § 9-19-27 ; use of the statutory phrase, “subscribed and sworn to under the penalties of perjury,” was not required. Morel v. Napolitano, 64 A.3d 1176, 2013 R.I. LEXIS 71 (2013).

Evidence.
— Insufficient.

The medical evidence presented by the plaintiff was incompetent to establish that an assault and battery by the defendant was the proximate cause of plaintiff’s alleged injury. Picard v. Barry Pontiac-Buick, 654 A.2d 690, 1995 R.I. LEXIS 28 (1995).

Failure to Give Notice.

Where a party fails to give the opposing party notice as required by this section, an affidavit he seeks to introduce is inadmissible although it meets all other requirements of this section, and the fact that the party and the court exerted extraordinary efforts to secure the attendance of the affiant as a witness at the trial does not alter such inadmissibility. Andrews v. Masse, 115 R.I. 104 , 341 A.2d 30, 1975 R.I. LEXIS 1126 (1975).

The providing of a ten-day notice as set forth in the statute is a condition precedent to the receipt in evidence of a physician’s affidavit. Proof of notice may be required by the trial justice at the time of the offer of the evidence. Hudson v. Napolitano, 575 A.2d 187, 1990 R.I. LEXIS 123 (1990).

The trial justice properly excluded psychologist’s affidavit because it did not comply with this section’s 10-day rule. Jameson v. Hawthorne, 635 A.2d 1167, 1994 R.I. LEXIS 1 (1994).

Medical records relating to injuries suffered by a plaintiff in auto accidents years before the one at issue should not have been admitted in evidence to challenge the plaintiff’s claims that all injuries were caused by the most recent accident, because notice had not been provided of the intent to offer them in evidence, as required by R.I. Gen. Laws § 9-19-27 , and no foundation had been laid for offering them in evidence as businesss records under R.I. R. Evid. 803 (6). Boscia v. Sharples, 860 A.2d 674, 2004 R.I. LEXIS 172 (2004).

Out-Of-State Affiant.

This section clearly considers the out-of-state affiant who may be cross-examined by the opposing party at a deposition because he or she is outside the subpoena power of the state. Martinez v. Kurdziel, 612 A.2d 669, 1992 R.I. LEXIS 171 (1992).

Proximate Cause.

Medical affidavits dealing with treatment that occurred after an automobile collision are properly excluded where they do not individually establish any causal connection between the injuries complained of and the collision. Cuddy v. Schiavonne, 568 A.2d 1387, 1990 R.I. LEXIS 23 (1990).

— Burden of Proof.

This section does not lessen the offering party’s burden to establish the relevancy and reasonableness standard for evidence. The offering party must still establish a causal relationship between the injury and the physical condition claimed to have resulted from it. All the evidentiary requirements must still be met and are not relaxed in any manner. Martinez v. Kurdziel, 612 A.2d 669, 1992 R.I. LEXIS 171 (1992).

— Degree of Certainty.

Although absolute certainty is not required, a medical expert must report that the injuries incurred “most probably” resulted from one specific cause rather than several potential causes. Parrillo v. F.W. Woolworth Co., 518 A.2d 354, 1986 R.I. LEXIS 567 (1986).

When expert medical testimony is offered to establish a causal relationship between a defendant’s act or omission and the plaintiff ’s injury, the testimony must speak in terms of “probabilities” rather than “possibilities”. Parrillo v. F.W. Woolworth Co., 518 A.2d 354, 1986 R.I. LEXIS 567 (1986).

It was error to uphold doctor’s affidavit which attested to the cause and permanency of injury in a patient whom he had not treated in five and one-half years and whose medical file he apparently did not consult at the time he signed the affidavit. Picard v. Barry Pontiac-Buick, 654 A.2d 690, 1995 R.I. LEXIS 28 (1995).

Rules of Evidence.

The admission of the medical bills under Rule 803(6), Rules of Evidence, did not circumvent the requirement of this section, that medical affidavits purporting to establish proximate cause be supported by properly documented affidavits or by direct testimony of the physician rendering the opinion. Accordingly the trial justice did not err in admitting the bills under Rule 803(6) as evidence of the measure of damages claimed by the plaintiff. Ouellette v. Carde, 612 A.2d 687, 1992 R.I. LEXIS 169 (1992).

9-19-27.1. Repealed.

History of Section. P.L. 1970, ch. 232, § 1; Repealed by P.L. 1981, ch. 164, § 2. For current law, see § 9-19-27 .

Compiler’s Notes.

Former § 9-19-27.1 concerned evidence of charges for medical and hospital services.

9-19-27.2. Evidence of charges required from hospitals for medical records, hospital services and for prescriptions and orthopedic appliances — Applicable to claims against medical providers.

  1. In any proceeding commenced in any court, commission, or agency, an itemized bill and reports, whether originating within this state or any other state, including hospital medical records, relating to medical, dental, hospital services, prescriptions, or orthopedic appliances rendered to or prescribed for a person injured, and/or any report of any examination of the injured person, including, but not limited to, hospital medical records subscribed and sworn to under the penalties of perjury by the physician, dentist, or authorized agent of the hospital rendering the services or by the pharmacist or retailer of orthopedic appliances, shall be admissible as evidence of the fair and reasonable charge for the services and/or the necessity of the services or treatment, the diagnosis of the physician or dentist, the prognosis of the physician or dentist; the opinion of the physician or dentist as to proximate cause of the condition so diagnosed, and the opinion of the physician or dentist as to disability or incapacity, if any, proximately resulting from the condition so diagnosed; and, provided, further, that written notice of the intention to offer the bill or report as such evidence, together with a copy thereof, has been given to the opposing party or parties, or to his or her or their attorneys, by mailing the notice by certified mail, return receipt requested, not less than ten (10) days before the introduction of the bill or report into evidence, and that an affidavit of the notice and the return receipt is filed with the clerk of the court forthwith after the receipt has been returned. Nothing contained in this section shall be construed to limit the right of any party to the action to summon or depose, at his or her own expense, the physician, dentist, pharmacist, retailer of orthopedic appliances, or agent of the hospital for the purpose of cross examination with respect to the bill, record, and report or to rebut the contents thereof, or for any other purpose, nor to limit the right of any party to the action to summon or depose any other person to testify in respect to the bill, record, and/or report or for any other purpose.
  2. The words “physician”, and “dentist” shall not include any person who is not licensed to practice as such under the laws of the jurisdiction within which the services were rendered, but shall include chiropodists, chiropractors, optometrists, osteopaths, physical therapists, psychologists, and other medical personnel licensed to practice under title 5 or under the laws of the jurisdiction within which the services were rendered.
  3. The word “hospital” shall mean any hospital required to incorporate under title 7, or which is in any way licensed or regulated by the laws of any other state, or by the laws and regulations of the United States, including hospitals of the veterans administration or similar type institutions, whether incorporated or not.
  4. Any party objecting to the admitting into evidence of the affidavit shall file an objection specifying the grounds thereof within ten (10) days of receipt of the affidavit, or said objections are waived.
  5. These provisions shall only apply to claims for personal injury or wrongful death filed against a licensed physician, hospital, clinic, health maintenance organization, professional service corporation providing health care services, dentist, or dental hygienist based on professional negligence.

History of Section. P.L. 2012, ch. 373, § 2; P.L. 2012, ch. 395, § 2.

Compiler’s Notes.

P.L. 2012, ch. 373, § 2, and P.L. 2012, ch. 395, § 2 enacted identical versions of this section.

9-19-28. Evidence of damage to property.

  1. In any proceeding commenced in any court, commission, or agency for damage to real or personal property, an itemized statement of what portions of the property were repaired or replaced together with the cost of any parts replaced on the property and the value of any labor extended in the repairing or replacement, or an itemized statement of the estimated cost of repairing the damaged property, including the cost of replacement parts and labor, which has been subscribed and sworn to under the penalties of perjury by the person making the repairs or under whose direction the repairs were made, or by the person giving the estimate, or under whose direction the estimate was prepared, shall be admissible as evidence of the fair and reasonable cost of repairing the damage and shall constitute prima facie evidence of the reasonable cost of the repairs thereof; provided, however, that the statement shall contain no reference to the cause of the damage; and, provided further, that written notice of the intention to offer such a statement as evidence, together with a copy thereof, has been given to the opposing party or parties, or to his or her or their attorneys, by mailing the notice by certified mail, return receipt requested, not less than ten (10) days before the introduction of the statement into evidence, and that an affidavit of the notice and the return receipt is filed with the clerk of the court forthwith after the receipt has been returned. Nothing contained in this section shall be construed to limit the right of any party to summon, at his or her own expense, the person subscribing to the statement, for the purpose of cross examination with respect to the statement or to rebut the contents thereof or for any other purpose, nor to limit the right of any party to summon, at his or her own expense, any other person to testify in respect to the statement or for any other purpose, nor to limit the right of any party to summon, at his or her own expense, the business records of any person offering any such statement.
  2. The word “person” as used herein shall mean any individual, firm, partnership, or corporation, or any full time employee thereof, engaged in the business of servicing and repairing property, or regularly performing such services incident to its principal business, or any individual licensed by the insurance commissioner as a motor vehicle damage appraiser pursuant to § 27-10.1-1 .

History of Section. P.L. 1963, ch. 120, § 1; P.L. 1971, ch. 124, § 1; P.L. 1981, ch. 164, § 2; P.L. 1986, ch. 208, § 1; P.L. 1993, ch. 255, § 1.

9-19-29. Admissibility of records of deceased physicians, dentists and professional engineers.

  1. In all actions for the recovery of benefits under the Workers’ Compensation Act, chapters 29 — 38 of title 28, for personal injury or death, and in all actions for the recovery of damages for personal injury or death in any civil proceeding, if a physician, dentist, or professional engineer has died prior to the time of the trial of the action, the written records, reports, or bills of the physician or dentist concerning the patient who suffered the injury or death, and the reports and scale drawings of the professional engineer concerning matter relevant to the circumstances under which the injury or death was sustained, shall be admissible in evidence.
  2. In all actions for the recovery of benefits under the Workers’ Compensation Act for personal injury or death and in all actions for the recovery of damages for personal injury or death in any civil proceeding, if a physician, dentist, or professional engineer has moved out of this state prior to trial or cannot be located within this state after a reasonable search, and whose whereabouts and address are unknown, any written records, reports, or bills of the physician or dentist concerning the patient who suffered the injury or death, and the reports and scale drawings of the professional engineer concerning matter relevant to the circumstances under which the injury or death was sustained, shall be admissible in evidence and the patient may testify as to the medical or dental services provided and the treatment received, and another physician or dentist may provide evidence as to the medical or dental services or treatment as if the physician or dentist had been the one who rendered the services or treatment, including evidence as to the fair and reasonable charge for the services, the necessity of the services or treatment and any other matter.

History of Section. P.L. 1969, ch. 229, § 1; P.L. 1982, ch. 453, § 1.

9-19-30. Certain statements of fact or opinion admissible in evidence in civil actions for malpractice.

Statements of facts or opinions on a subject of science or art contained in a published treatise, periodical, book, or pamphlet shall, insofar as the court shall find that the statements are relevant and that the writer of the statements is recognized in his or her profession or calling as an expert on the subject, be admissible in civil actions for malpractice, error, or mistake against physicians, surgeons, dentists, optometrists, hospitals, and sanitaria, as evidence tending to prove the facts or as opinion evidence; provided, however, that the party intending to offer as evidence any such statements shall, not less than thirty (30) days before the trial of the action, give the adverse party or his or her attorney notice of such intention, stating the name of the writer of the statements, the title of the treatise, periodical, book, or pamphlet in which they are contained, the date of publication of the treatise, periodical, book, or pamphlet, the name of the publisher of the treatise, periodical, book, or pamphlet, and wherever possible or practicable the page or pages of the treatise, periodical, book, or pamphlet on which the statements appear.

History of Section. P.L. 1969, ch. 230, § 1.

NOTES TO DECISIONS

Admissibility — In General.

Although under this section statements in a treatise are admissible in a medical-malpractice action as evidence tending to prove the facts or opinions they contain, they cannot be relied upon in the absence of other evidence to establish deviation from the standard of care. Richardson v. Fuchs, 523 A.2d 445, 1987 R.I. LEXIS 444 (1987).

In a medical malpractice action, the trial court properly ruled that the plaintiff’s proffered textbooks did not establish a standard of care for the radiologist or the radiology association she sued since the plaintiff failed to authenticate the same and failed to show that the authors were experts in their field to be reliable to establish a standard of care. Foley v. St. Joseph Health Servs., 899 A.2d 1271, 2006 R.I. LEXIS 109 (2006).

Collateral References.

Coverage of professional liability or indemnity policy for sexual contact with patients by physicians, surgeons, and other healers. 60 A.L.R.5th 239.

Reliability of scientific technique and its acceptance within scientific community as affecting admissibility, at federal trial, of expert testimony as to result of test or study based on such technique — modern cases. 105 A.L.R. Fed. 299.

9-19-31. Written statements or recordings in actions to recover damages for personal injuries.

In any action to recover damages for personal injuries, no written statements or recordings concerning the facts out of which the cause of action arose given by either party to the other, or to his or her agent, attorney, or insurer shall be admissible in evidence for any purpose unless the name and address of the person taking the statement or recording appears thereon and unless a copy thereof is retained by the party giving the statement or recording or delivered to him or her at the time the statement or recording was given or within thirty (30) days thereafter.

History of Section. P.L. 1969, ch. 250, § 1.

9-19-32. Informed consent a preliminary question.

In actions against physicians as defined in § 5-37-1(12) , hospitals, clinics, health maintenance organizations, or professional service corporations providing health care services and organized under chapter 5.1 of title 7 for malpractice in providing treatment to patients, issues of informed consent or reasonable disclosure of all known material risks shall be initially considered by the court as preliminary questions of fact. Such issues shall be submitted to the jury by the court only in the event that it finds, after weighing the evidence and considering the credibility of the witnesses, that reasonable minds might fairly come to different conclusions in respect to such issues on the basis of the evidence presented and inferences to be drawn therefrom.

History of Section. P.L. 1976, ch. 244, § 7; P.L. 1977, ch. 77, § 1; P.L. 1978, ch. 149, § 3; P.L. 1997, ch. 326, § 70.

Collateral References.

Hospital liability as to diagnosis and care of patients in emergency room. 58 A.L.R.5th 613.

Liability for medical malpractice in connection with performance of circumcision. 75 A.L.R.4th 710.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper diagnosis and treatment of mother relating to and during pregnancy. 7 A.L.R.5th 1.

9-19-33. Res ipsa loquitur in medical malpractice actions.

In actions against licensed physicians, hospitals, clinics, health maintenance organizations, or professional service corporations providing health care services under chapter 5.1 of title 7 for malpractice in providing treatment to patients, the issue of res ipsa loquitur shall be a preliminary question of fact for the court to determine. The issue will be submitted to the jury by the court only in the event that, after weighing the evidence and the credibility of witnesses, the court is of the opinion that reasonable minds might fairly come to different conclusions as to whether the evidence of the circumstances would create a basis for a reasonable inference of negligence.

History of Section. P.L. 1976, ch. 244, § 7; P.L. 1977, ch. 77, § 2.

NOTES TO DECISIONS

In General.

Preconditions to the use of the res ipsa doctrine in any negligence action are: (1) the accident or injury must be of a kind which does not occur in the absence of someone’s negligence; (2) such accident or injury must be caused by an agency or instrumentality in the exclusive control of the defendant; and (3) it must not have been caused by any voluntary act or contribution on the part of the plaintiff. Marshall v. Tomaselli, 118 R.I. 190 , 372 A.2d 1280, 1977 R.I. LEXIS 1445 (1977).

Medical Malpractice.

Res ipsa doctrine is inapplicable to medical malpractice actions unless the usual preconditions are met and the alleged negligent conduct lies within a layman’s common knowledge or there is expert testimony that the injury could have occurred only in the absence of the physician’s due care; and plaintiff could not invoke the doctrine in the case of a synovectomy, which lay outside common knowledge and upon which there was no expert testimony establishing a standard of care. Marshall v. Tomaselli, 118 R.I. 190 , 372 A.2d 1280, 1977 R.I. LEXIS 1445 (1977).

Where the side effects from a surgical operation may well have occurred in the absence of negligence and where there were obviously legitimate purposes for the surgery, which was performed by a substitute physician who filled in for the original doctor who had no consent to operate, the plaintiff was not entitled to recovery on a theory of res ipsa loquitur. Sousa v. Chaset, 519 A.2d 1132, 1987 R.I. LEXIS 398 (1987), overruled in part, Cruz v. Daimlerchrysler Motors Corp., 66 A.3d 446, 2013 R.I. LEXIS 82 (2013).

Collateral References.

Application of “firemen’s rule” to bar recovery by emergency medical personnel injured in responding to, or at scene of, emergency. 89 A.L.R.4th 1079.

Gynecological malpractice not involving hysterectomies or oophorectomies. 86 A.L.R.4th 125.

Hospital liability as to diagnosis and care of patients in emergency room. 58 A.L.R.5th 613.

Joint and several liability of physicians whose independent negligence in treatment of patient causes indivisible injury. 9 A.L.R.5th 746.

Liability for Malpractice in Diagnosis or Misdiagnosis of, or Treatment for, Migraine. 41 A.L.R.7th Art. 6 (2019).

Malpractice involving hysterectomies and oophorectomies. 86 A.L.R.4th 18.

Malpractice: physician’s duty, under informed consent doctrine, to obtain patient’s consent to treatment in pregnancy or childbirth cases. 89 A.L.R.4th 799.

Medical malpractice: drug manufacturer’s package insert recommendations as evidence of standard of care. 82 A.L.R.4th 166.

Medical malpractice in connection with diagnosis, care, or treatment of diabetes. 43 A.L.R.5th 87.

Medical Malpractice in Failing to Diagnose or Properly Treat Multiple Sclerosis, or Misdiagnosing Another Condition as Multiple Sclerosis. 41 A.L.R.7th Art. 13 (2019).

Recoverability of cost of raising normal, healthy child born as result of physician’s negligence or breach of contract or warranty. 89 A.L.R.4th 632.

Tort Liability of Physician or Hospital in Connection with Organ or Tissue Transplant Procedures. 38 A.L.R.7th Art. 5 (2019).

What nonpatient claims against doctors, hospitals, or similar health care providers are not subject to statutes specifically governing actions and damages for medical malpractice. 88 A.L.R.4th 358.

What patient claims against doctor, hospital, or similar health care provider are not subject to statutes specifically governing actions and damages for medical malpractice. 89 A.L.R.4th 887.

9-19-34. Repealed.

History of Section. P.L. 1976, ch. 244, § 7; P.L. 1977, ch. 77, § 3; Repealed by P.L. 1997, ch. 326, § 101, effective July 8, 1997. For present comparable provisions, see § 9-19-34.1 .

Compiler’s Notes.

Former § 9-19-34 concerned the collateral source rule in medical malpractice actions arising prior to January 1, 1987.

9-19-34.1. Collateral source rule in medical malpractice actions.

In the event the defendant so elects, in a legal action based upon a cause of action arising after January 1, 1987, for personal injury against a licensed physician, hospital, clinic, health maintenance organization, professional service corporation providing health care services under chapter 5.1 of title 7, dentist, or dental hygienist based upon professional negligence, the defendant may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to any state income disability or workers’ compensation act, any health, sickness or income disability insurance, accident insurance that provides health benefits or income disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other health care services. Where the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount which the plaintiff has paid or contributed to secure his or her right to any insurance benefits concerning which the defendant has introduced evidence. When such evidence is introduced, the jury shall be instructed to reduce the award for damages by a sum equal to the difference between the total benefits received and the total amount paid to secure the benefits by the plaintiff or the court may ascertain the sum by special interrogatory and reduce the award for damages after verdict. Whenever an award is so reduced, the lien of any first party payor who has paid such a benefit against the judgment shall be foreclosed and the plaintiff shall have no legal obligation to reimburse the payor.

History of Section. P.L. 1986, ch. 350, § 7.

Law Reviews.

2005 Survey of Rhode Island Law: Tort Law: Esposito v. O’Hair , see 11 Roger Williams U. L. Rev. 913 (2006).

NOTES TO DECISIONS

Applicability Under Federal Tort Claims Act.

When Rhode Island law is to be applied in a medical malpractice case brought under the Federal Tort Claims Act, the federal sovereign may avail itself of this section to the same extent as could a hospital or other similarly-situated health-care provider in kindred circumstances. Reilly v. United States, 863 F.2d 149, 1988 U.S. App. LEXIS 17018 (1st Cir. 1988).

Effect of Compensation From Collateral Sources.

The damages recoverable by an injured plaintiff should be reduced to the extent that compensation has been received from collateral sources. Doe v. United States, 737 F. Supp. 155, 1990 U.S. Dist. LEXIS 5951 (D.R.I. 1990).

Rhode Island’s Medicaid program was not a state income disability act, and thus did not fall within the list of collateral source payments that were admissible to reduce a plaintiff’s damages under R.I. Gen. Laws 1956, 9-19-34.1 . Section 9-19-34.1 was not a remedial statute, and the term “income disability act” meant an act that provided income to persons who were disabled; Medicaid did not fit this definition because many Medicaid recipients were not disabled, such as those who were aged 65 or older. Esposito v. O'Hair, 886 A.2d 1197, 2005 R.I. LEXIS 222 (2005).

Collateral References.

Collateral source rule: admissibility of evidence of availability to plaintiff of free public special education on issue of amount of damages recoverable from defendant. 41 A.L.R.5th 771.

Validity and construction of state statute abrogating collateral source rule as to medical malpractice actions. 74 A.L.R.4th 32.

9-19-35. Failure to bill inadmissible in medical malpractice cases.

  1. For the purposes of this section, “health care provider” means any physician as defined in § 5-37-1(12) , hospital, clinic, health maintenance organization, or professional service corporation providing health care services and organized under chapter 5.1 of title 7, or any officer, employee, or agent thereof acting in the course and scope of his employment.
  2. The failure of a health care provider to bill a patient for services rendered shall not be construed as an admission of liability and shall not be admissible in evidence as to liability in any hearing or trial of an action of tort or breach of contract for malpractice, error, or mistake against a health care provider.

History of Section. P.L. 1981, ch. 103, § 1; P.L. 1997, ch. 326, § 70.

Compiler’s Notes.

The definition of “physician” is now located in § 5-37-1(13) .

9-19-36. Advance payments inadmissible in medical malpractice cases.

Any advance payment for medical bills by a health care provider or by the insurer of a health care provider shall not be construed as an admission of liability and shall not be admissible in evidence as to liability in any hearing or trial of an action of tort or breach of contract for malpractice, error, or mistake against a health care provider; provided, however, that nothing herein shall be construed to limit the right of a health care provider to introduce in evidence any advance payment for medical bills in diminution of damages.

History of Section. P.L. 1981, ch. 103, § 1.

9-19-37. Repealed.

History of Section. P.L. 1982, ch. 350, § 2; Repealed by P.L. 1987, ch. 381, § 5. Section 7 of P.L. 1987, ch. 381 provides that the repeal of this section by that Act shall take effect on the date that Rhode Island Rules of Evidence adopted by the Supreme Court take effect. Those Rules took effect October 1, 1987.

Compiler’s Notes.

Former § 9-19-37 concerned certificates of title as evidence in criminal proceedings.

9-19-38. Proof of life or work life expectancy.

  1. In any proceeding commenced in any court, commission, or agency, when the life or work life expectancy of a person shall be at issue or when it is necessary to establish the expectancy of continued life or work life expectancy of any person from any period of the person’s life, whether he or she is living at the time or not, the most recent issue of “The United States Abridged Life Tables” (United States Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics) or Tables of Work Life Expectancies as published in “Work Life Estimates: Effects of Race and Education” (United States department of labor, bureau of labor statistics) shall be admissible in evidence as competent evidence of such matter. The admissibility of evidence provided for in this section shall not be deemed to render inadmissible evidence as to the health, constitution, habits, or occupation of the person or any other evidence otherwise admissible under the laws of this state.
  2. The life and work life expectancy tables may be evidenced by an official publication of the tables or by a copy of the tables as published in a compiler’s note under this section in the general laws of Rhode Island. The tables as published in the general laws of Rhode Island shall be sufficient proof of life and work life expectancy without further foundation or authentication; provided, however, that written notice of the intention to offer the life or work life expectancy tables as evidence, together with a copy of the tables, has been given to the opposing party or parties, or to his or her or their attorneys, by mailing it by certified mail, return receipt requested, not less than ten (10) days before the introduction of the tables into evidence, and that an affidavit of the notice and the return receipt are filed with the clerk of the court immediately after the receipt has been returned.

History of Section. P.L. 1983, ch. 53, § 1; P.L. 1986, ch. 511, § 1; P.L. 2000, ch. 335, § 1.

Compiler’s Notes.

Abridged Life Tables and Tables of Work Life Expectancies.

The United States Abridged Life Tables, as issued by the United States department of health and human services, centers for disease control, and the Tables of Working Life, as issued by the United States department of labor, bureau of labor statistics, are set out immediately following this section. The Abridged Life Tables are taken from a report dated December 24, 1998, and reflect the latest version of the abridged tables. A full Life Tables were published in a report dated December 13, 1999. The Tables of Working Life are taken from Bulletin 2254, dated February 1986, and represent the latest version of these tables.

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NOTES TO DECISIONS

Applicability.

Subsection (a) clearly permits a party to introduce life and work expectancy tables when the life or work life expectancy of a person is at issue. Their relative value may be challenged later in cross-examining by the opposing party, as well as through the introduction of other competent evidence. Kay v. Menard, 754 A.2d 760, 2000 R.I. LEXIS 155 (2000).

Work Life Expectancy.

Earning capacity in a personal injury (medical malpractice) case is equated with “work life” expectancy, and this expectancy was properly proven by the plaintiffs. Reilly v. United States, 665 F. Supp. 976, 1987 U.S. Dist. LEXIS 6993 (D.R.I. 1987), aff'd in part and rev'd in part, 863 F.2d 149, 1988 U.S. App. LEXIS 17018 (1st Cir. 1988).

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.

9-19-39. Use of photostatic copies.

  1. Use of photostatic copies of medical records  — Originals held available. Medical charts or records of any health care facility licensed under the laws of this state that are susceptible to photostatic reproduction may be proved as to foundation, identity, and authenticity without any preliminary testimony by use of legible and durable copies, certified in the manner provided herein by the employee of the health care facility charged with the responsibility of being custodian of the originals thereof. The copies may be used in any trial, hearing, deposition, or any other judicial or administrative action or proceeding, whether civil or criminal, in lieu of the original charts or records which, however, the health care facility shall hold available during the pendency of the action of proceeding for inspection and comparison by the court, tribunal, or hearing officer and by the parties and their attorneys of record.
  2. Subpoena of records  — Certification of copies — Personal delivery.
    1. When a subpoena duces tecum is served upon any employee of any health care facility licensed under the laws of this state, requiring the production of any such medical charts or records at any action or proceeding consistent with the requirements of § 5-37.3-6 , it shall be deemed a sufficient response to the subpoena if the employee of the health care facility charged with the responsibility of being custodian of the original thereof promptly notifies the attorney for the party causing service of the subpoena of the health care facility’s election to proceed under the provisions of this section and of the estimated actual and reasonable expenses of reproducing the charts or records. Upon the notification, the attorney causing the service of the subpoena shall notify all other attorneys of record or other parties if they are not represented by attorneys of the health care facility’s election. Following the election, the employee of the health care facility charged with the responsibility of being custodian of the original charts or records specified in the subpoena shall hold the originals available at the health care facility, and upon payment of their reasonable reproduction expense not to exceed the sum of twenty-five dollars ($25.00) by the party causing service of the subpoena, or by any other party, shall promptly deliver, by certified mail or with thirty (30) minutes advance notice by personal delivery, legible and durable copies, certified by the health care facility employee, of all medical charts or records specified in the subpoena to the person specified in the subpoena.
    2. The certification shall be signed before a notary public by the employee of the health care facility charged with the responsibility of being custodian of the records and shall include the full name of the patient, the patient’s medical record number, the number of pages in the medical record, and a legend substantially to the following effect: “The copies of records for which this certification is made are true and complete reproductions of the original or microfilmed medical records which are housed in (name of health care facility). The original records were made in the regular course of business, and it was the regular course of (name of health care facility) to make such records at or near the time of the matter recorded. This certification is given pursuant to Rhode Island general laws § 9-19-39 by the custodian of the records in lieu of his or her personal appearance. Such copies shall be separately enclosed and sealed in an inner envelope or wrapper bearing the legend ‘Copies of Medical Records.’”
    3. When the copies of records are personally delivered a receipt shall be presented to the person receiving the records for his or her signature and shall be immediately signed and returned to the person delivering the records. The receipt shall contain the name of the health care facility, the full name of the patient, the date the copies of records were received, and the signature of the person receiving the records. When the copies of the records are sent via certified mail, the receipt used by the postal authorities shall be sufficient to prove delivery and receipt of the copies of records.
    4. If the health care facility has none of the charts or records specified in the subpoena, or only a part thereof, the employee of the health care facility charged with the responsibility of being custodian of original hospital charts or records shall so state in a notarized affidavit and, following notice and payment of expenses, shall hold available the original charts or records which are in the health care facility’s custody and specified in the subpoena and shall deliver the certified copies together with the affidavit.
    5. Any patient whose medical records or charts are copied and delivered pursuant to subdivisions (b)(1) through (b)(4), any person acting on the patient’s behalf, and the health care facility having custody of the records, shall have standing to apply to the court or other body before which the action or proceeding is pending for a protective order denying, restricting, or otherwise limiting access to and use of the copies or original charts and records.
  3. Opening of sealed envelopes.  The copy of the records shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, upon the direction of the judge, court, officer, attorney, body, or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at the trial, deposition, or hearing. Before directing that the inner-envelope or wrapper be opened, the judge, court, officer, attorney, body, or tribunal shall first ascertain that either:
    1. The records have been subpoenaed in accordance with § 5-37.3-6 ; or
    2. The patient involved or someone authorized in his or her behalf to do so for him or her has consented thereto in accordance with § 5-37.3-4 .
  4. Return of medical records to court clerk.  When the copies of records are delivered to a party or his or her attorney of record for use in a deposition, they shall, after termination of the deposition, be delivered personally or by certified mail to the clerk of the court or other body before which the action or proceeding is pending, and it shall be the responsibility of the party or attorney to transmit the receipt obtained to the employee of the health care facility charged with responsibility of being custodian of the original records. When the records are received by the clerk of the court or other body from a health care facility or from a party or his or her attorney of record they shall be retained in the clerk’s custody, consistent with the requirements of § 5-37.3-4(c) , at all times except when actually used in the action or proceeding. Nothing herein shall be construed to prevent the attorneys of record in the case from retaining copies of the records obtained at the deposition. Upon issuance of a final order terminating a case, the copies of the records will be promptly filed in a manner that protects the confidentiality of the medical information contained therein consistent with the requirements of § 5-37.3-4(c) by the clerk of the court with all other documents pertaining to the case until such a time as the normal retention period for court records expires. The copies of records shall then be permanently disposed of by the clerk in a manner that protects the confidentiality of the medical information contained therein. Should the case be appealed, the copies of records shall be forwarded to the appellate court with other documents pertaining to the case and retained and disposed of in the manner previously described.
  5. Obtaining personal attendance of custodian.  The personal attendance of the employee of the health care facility charged with the responsibility of being the custodian of the original charts or records specified in the subpoena shall be required if the subpoena duces tecum contains a clause which reads: “The procedure authorized pursuant to § 9-19-39 will not be deemed sufficient compliance with this subpoena.”
  6. Obtaining personal attendance of custodian and production of original record.  The personal attendance of the employee of the health care facility charged with the responsibility of being the custodian of the original charts or records specified in the subpoena and the production of the original record shall be required if the subpoena duces tecum contains a clause which reads: “Original records are required, and the procedure authorized pursuant to § 9-19-39 will not be deemed sufficient compliance with this subpoena.”

History of Section. P.L. 1985, ch. 102, § 1.

NOTES TO DECISIONS

Applicability.

Because the pharmacy is not a qualified “health care facility”, it is not entitled to take advantage of the provisions of this section which allows a qualified health care facility to respond to a subpoena for health-care records by certified mail. Washburn v. Rite Aid Corp., 695 A.2d 495, 1997 R.I. LEXIS 203 (1997).

9-19-40. Records of the division of motor vehicles.

In any administrative, civil, or criminal proceeding in which the status of the license of any person who drives a motor vehicle on any highway of this state is an issue, certified copies of relevant documents on file with the division of motor vehicles or with the official custodian of relevant documents of another state or subdivision thereof, and the certified statement of the administrator, his or her equivalent, or his or her duly appointed designee as to the status of the license, shall be admissible as evidence of the status of the license subject to the right of the defendant to subpoena the records in rebuttal. Upon request, copies shall be provided to the person or his or her counsel at least three days before the proceeding.

History of Section. P.L. 1985, ch. 323, § 1.

9-19-41. Expert witnesses in malpractice cases.

In any legal action based upon a cause of action arising on or after January 1, 1987, for personal injury or wrongful death filed against a licensed physician, hospital, clinic, health maintenance organization, professional service corporation providing health care services, dentists, or dental hygienist based on professional negligence, only those persons who by knowledge, skill, experience, training, or education qualify as experts in the field of the alleged malpractice shall be permitted to give expert testimony as to the alleged malpractice.

History of Section. P.L. 1986, ch. 350, § 5.

Law Reviews.

Caselaw Survey Section: Evidence, see 4 R.W.U.L. Rev. 720 (1999).

Survey Section: Evidence, see 3 R.W.U.L. Rev. 498 (1998).

NOTES TO DECISIONS

In General.

This section is not superseded by Rule 702 of the Rhode Island Rules of Evidence, as the two laws are complementary rather than contradictory to each other. Soares v. Vestal, 632 A.2d 647, 1993 R.I. LEXIS 229 (1993).

Section 9-19-41 and Rule 702 of the Rhode Island Rules of Evidence, when construed both literally and liberally, intend to require only that a proffered expert possess adequate knowledge, skill, experience or education in the same field as the alleged malpractice. Debar v. Women & Infants Hosp., 762 A.2d 1182, 2000 R.I. LEXIS 204 (2000).

Applicability.

The General Assembly has in this section, for medical malpractice cases, statutorily prescribed the requisite criteria for an expert witness but has not prescribed that he or she need be licensed in Rhode Island. Owens v. Payless Cashways, 670 A.2d 1240, 1996 R.I. LEXIS 27 (1996).

Qualifications.

To qualify as a expert witness, the testifying doctor need not be board certified or otherwise have had training or experience in the same medical specialty as the defendant-physician, provided the proposed expert otherwise has knowledge, skill, experience, or education in the same field as the alleged malpractice. Thus, a doctor skilled in pediatrics and family medicine, with experience in treating animal-bite wounds of the kind suffered by the plaintiff in the case at hand, did not need to be board certified in emergency or internal medicine to testify about the pertinent standard of care in treating such wounds and to opine whether the defendant-physician, who was so certified, met that standard. However relevant such matters may be to the weight given by the factfinder to the expert’s opinion, they should not bar such testimony ab initio. Marshall v. Medical Assocs., 677 A.2d 425, 1996 R.I. LEXIS 177 (1996).

There is nothing in the plain and unambiguous language of this section that requires that before an expert testifies in a medical malpractice case, he or she must not only be an expert in the field where the alleged malpractice occurred, but must also practice in the same specialty as the defendant. This additional requirement is unnecessary and is in contravention to the General Assembly’s clear intent. Buja v. Morningstar, 688 A.2d 817, 1997 R.I. LEXIS 23 (1997).

The “same or similar communities” test is repudiated in favor of a national standard; thus, in an obstetrical malpractice action that involved a procedure and standard of care that has remained constant for over 30 years, a doctor who was board-certified in OB/GYN with over 30 years’ experience, a clinical professor of obstetrics and gynecology at a major New York hospital, and a member of the New York Statewide Professional Standards Review Council was qualified to testify regarding the appropriate standard of care. Sheeley v. Memorial Hosp., 710 A.2d 161, 1998 R.I. LEXIS 135 (1998).

In defining what constitutes the “field” of alleged malpractice, the state supreme court looks largely to the nature of the patient’s injury or to the nature of the procedure employed, rather than to rigid classifications based solely on specialty certification. Debar v. Women & Infants Hosp., 762 A.2d 1182, 2000 R.I. LEXIS 204 (2000).

Since it is appropriate in the right circumstances for a proposed expert witness formally trained in a different specialty other than that of the defendant to testify in the context of evaluating the appropriate standard of care in a given case, that same expert may testify regarding causation. Debar v. Women & Infants Hosp., 762 A.2d 1182, 2000 R.I. LEXIS 204 (2000).

In determining if expert testimony about novel or technically complex theories or procedures possesses scientific validity, four non-exclusive factors are to be considered: (1) whether the proffered knowledge has been or can be tested; (2) whether the theory or technique has been the subject of peer review and publication; (3) whether there is a known or potential rate of error; and (4) whether the theory or technique has gained general acceptance in the scientific community. Owens v. Silvia, 838 A.2d 881, 2003 R.I. LEXIS 235 (2003).

The court abused its discretion in determining that a patient’s expert doctor was not qualified to testify and render his opinions in the patient’s medical malpractice case where that trial court determined that the expert’s theory of negligence was not one shared by the individual doctor defendants and that the patient failed to introduce any evidence that would corroborate the scientific validity of the doctor’s causation conclusions. Owens v. Silvia, 838 A.2d 881, 2003 R.I. LEXIS 235 (2003).

Specific Cases.

The trial court erred in excluding the testimony of plaintiff’s expert based upon his alleged inability to testify in regard to his knowledge of the standard of care in Rhode Island; the court should have considered the admissibility of the testimony in the light of this section and Rule 702 of the Rhode Island Rules of Evidence. Flanagan v. Wesselhoeft, 712 A.2d 365, 1998 R.I. LEXIS 174 (1998).

The trial justice erred when he arbitrarily concluded that a pediatric neurologist could not make a skillful interpretation of obstetrical data and only could speculate on matters related to causation, since the physician’s hands-on experience, coupled with his qualifications as a board-certified pediatrician and especially as a board-certified pediatric neurologist, qualified him to testify about the cause of the infant’s death. Debar v. Women & Infants Hosp., 762 A.2d 1182, 2000 R.I. LEXIS 204 (2000).

Collateral References.

Necessity of expert evidence in proceeding for revocation or suspension of license of physician, surgeon, or dentist. 74 A.L.R.4th 969.

9-19-42. The Rhode Island rules of evidence.

The rules of evidence as adopted by the Rhode Island supreme court shall be controlling and take precedence over any statutory or case law in effect at the time of the adoption that is inconsistent with the Rhode Island rules of evidence.

History of Section. P.L. 1987, ch. 381, § 1.

Compiler’s Notes.

The Rhode Island rules of evidence were adopted effective October 1, 1987.

Law Reviews.

Matthew D. Provencher, Essay: Burying Evidence’s Dead Hand, 24 Roger Williams U. L. Rev. 317 (2019).

NOTES TO DECISIONS

Applicability.

The clear language of this section requires that if the statute governing the registration and licensing of engineers was in existence at the time that the Rules of Evidence were adopted, then Rule 702 takes precedence over any then existing inconsistent provisions of Chapter 8 of Title 5 in determining who may qualify as an expert witness. Owens v. Payless Cashways, 670 A.2d 1240, 1996 R.I. LEXIS 27 (1996).

9-19-43. Report of laboratory test.

  1. In any proceeding commenced in any court, commission, or agency, the report of analytical personnel employed by the state department of health to determine the presence of controlled substances in any specimen which has been subscribed and sworn to under the penalties of perjury by the person making the examination which was the basis for the report shall be admissible as evidence of the facts stated therein in any such proceeding. Provided, however, that if the report is to be offered at trial, written notice of the intention to offer the report as evidence, together with a copy thereof, must be given to the opposing party or parties, or to his or her or their attorneys, by mailing the notice by certified mail, return receipt requested, not less than ten (10) days before the introduction of the report into evidence, and that an affidavit of the notice and the return receipt is filed with the clerk of the court forthwith after the receipt has been returned. Nothing contained in this section shall be construed to limit the right of any party to summon the person subscribing to the statement for the purpose of cross examination with respect to the report or to rebut the contents thereof or for any other purpose, nor to limit the right of any party to summon any other person to testify with respect to the report or for any other purpose, nor to limit the right of any party to summon the business records of any person offering the report.
  2. Nothing contained in this section shall prohibit the court, in its discretion, from requiring the appearance of the person making the report at any proceeding.

History of Section. P.L. 1988, ch. 395, § 1.

9-19-44. Mediator confidentiality in mediation proceedings.

  1. All memoranda and other work product, including files, reports, interviews, case summaries, and notes, prepared by a mediator shall be confidential and not subject to disclosure in any subsequent judicial or administrative proceeding involving any of the parties to any mediation in which the materials are generated; nor shall a mediator be compelled to disclose in any subsequent judicial or administrative proceeding any communication made to him or her in the course of, or relating to the subject matter of, any mediation by a participant in the mediation process. For the purposes of this section, “mediation” shall mean a process in which an impartial third party who is a qualified mediator, who lacks authority to impose a solution, helps participants reach their own agreement for resolving a dispute, whether or not a judicial action has been filed; and a “mediator” shall mean an impartial person who enters into a written agreement with the parties to assist them in resolving their dispute and who has completed at least thirty (30) hours of training in mediation, or has two (2) years of professional experience as a mediator, or has been appointed to mediate by a judicial or governmental body.
  2. This section shall not be applicable to any and all collective bargaining mediation, including but not limited to collective bargaining mediation conducted pursuant to chapters 9.1 — 9.5 and 10 of title 28 and chapter 11 of title 36.

History of Section. P.L. 1992, ch. 356, § 1.

Chapter 19.1 Newsman’s Privilege Act

9-19.1-1. “Newspaper” defined.

A newspaper or periodical as described in this chapter must be issued at regular intervals and have a paid circulation.

History of Section. P.L. 1971, ch. 86, § 1.

Collateral References.

Defamation: publication of letter to editor in newspaper as actionable. 54 A.L.R.5th 443.

9-19.1-2. Nondisclosure of confidential information.

Except as provided in § 9-19.1-3 , no person shall be required by any court, grand jury, agency, department, or commission of the state to reveal confidential association, to disclose any confidential information, or to disclose the source of any confidential information received or obtained by him or her in his or her capacity as a reporter, editor, commentator, journalist, writer, correspondent, newsphotographer, or other person directly engaged in the gathering or presentation of news for any accredited newspaper, periodical, press association, newspaper syndicate, wire service, or radio or television station.

History of Section. P.L. 1971, ch. 86, § 1.

NOTES TO DECISIONS

Examination of Confidential Sources.

When the plaintiff is required to show by clear and convincing evidence that the defendant acted with malice, it is impossible to uphold a discovery ruling that denies the plaintiff the opportunity to examine the confidential sources on which the defendant relies. Capuano v. Outlet Co., 579 A.2d 469, 1990 R.I. LEXIS 149 (1990).

Privilege Not Applicable.

Unpublished portions of a television interview conducted with and at the request of a person who was wanted by the authorities in connection with a grand jury investigation were not confidential and therefore not protected by the Newsman’s Privilege Act. Outlet Communications v. State, 588 A.2d 1050, 1991 R.I. LEXIS 57 (1991).

Waiver of Privilege.

Where a defendant in a defamation action pleads a defense of good faith and further testifies that the defamatory article was based upon a reliable confidential source, the statutory privilege will be deemed to have been waived. Capuano v. Outlet Co., 579 A.2d 469, 1990 R.I. LEXIS 149 (1990).

9-19.1-3. Qualifications.

  1. The privilege conferred by § 9-19.1-2 shall not apply to any information which has at any time been published, broadcast, or otherwise made public by the person claiming the privilege.
  2. The privilege conferred by § 9-19.1-2 shall not apply:
    1. To the source of any allegedly defamatory information in any case where the defendant, in a civil action for defamation, asserts a defense based on the source of the information; or
    2. To the source of any information concerning the details of any grand jury or other proceeding which was required to be secret under the laws of the state.
  3. In any case where a person claims a privilege conferred by this statute, the person seeking the information or the source of the information may apply to the superior court for an order divesting the privilege. If the court, after hearing the parties, shall find that there is substantial evidence that disclosure of the information or of the source of the information is necessary to permit a criminal prosecution for the commission of a specific felony, or to prevent a threat to human life, and that the information or the source of the information is not available from other prospective witnesses, the court may make such order as may be proper under the circumstance. Any such order shall be appealable under the provisions of chapter 24 of title 9.

History of Section. P.L. 1971, ch. 86, § 1.

NOTES TO DECISIONS

Confidential Sources.

A reporter could not be forced to reveal the identity of his confidential sources where he was not a party in the defamation action in question and where, while he identified a general class of persons from whom he might have obtained information, he declined specifically to name any informants upon whom he relied, except those contained in his article. Fischer v. McGowan, 585 F. Supp. 978, 1984 U.S. Dist. LEXIS 17641 (D.R.I. 1984).

Rhode Island Newsman’s Privilege Act did not protect a reporter from being compelled to answer questions about his source of a video tape that was the subject of a protective order in a criminal case because the tape dealt with the details of a grand jury proceeding and any privilege that might be accorded by the Act would be inconsistent with clearly established federal law. In re Special Proceedings, 291 F. Supp. 2d 44, 2003 U.S. Dist. LEXIS 17329 (D.R.I. 2003).

Waiver of Privilege.

Where a defendant in a defamation action pleads a defense of good faith and further testifies that the defamatory article was based upon a reliable confidential source, the statutory privilege will be deemed to have been waived. Capuano v. Outlet Co., 579 A.2d 469, 1990 R.I. LEXIS 149 (1990).

Chapter 20 Decisions, Special Findings and Assessment of Damages

9-20-1. Repealed.

History of Section. C.P.A. 1905, § 303; G.L. 1909, ch. 288, § 20; G.L. 1923, ch. 338, § 20; G.L. 1938, ch. 533, § 1; G.L. 1956, § 9-20-1 ; Repealed by P.L. 1965, ch. 55, § 33, effective January 10, 1966. For rules governing findings of fact and conclusions of law, see Super. Ct. R. Civ. P. Rule 52(a).

Compiler’s Notes.

Former § 9-20-1 concerned notation as to conclusions of law and fact in trial without jury.

9-20-2. Assessment of damages on default or submission.

In all cases, except where otherwise provided, if judgment is rendered on default, discontinuance, submission, or motion, damages shall be assessed by the court, with the intervention of a jury unless cause is shown why there should be no intervention of a jury. The claimant in any case may waive the intervention of a jury.

History of Section. C.P.A. 1905, § 352; G.L. 1909, ch. 291, § 5; G.L. 1923, ch. 341, § 5; G.L. 1938, ch. 534, § 1; G.L. 1956, § 9-20-2 ; P.L. 1958, ch. 61, § 2; P.L. 1961, ch. 120, § 1; P.L. 1965, ch. 55, § 34.

NOTES TO DECISIONS

Applicability.

This section applies to answered defaulted cases and § 9-11-8 , providing for hearing in chambers, applies only to unanswered cases. King v. Rhode Island Co., 27 R.I. 112 , 60 A. 837, 1905 R.I. LEXIS 40 (1905).

An admission of liability while still contesting damages is not a judgment by default or submission so as to invoke the provisions of this section. Blazar v. Perkins, 463 A.2d 203, 1983 R.I. LEXIS 1047 (1983).

At a hearing to determine damages the plaintiffs’ only burden was to prove the amount of damages they were entitled to recover from defaulted parties, and not the comparative negligence, if any, of settling defendants in relation to that of the defaulted defendants. Calise v. Hidden Valley Condo. Ass'n, 773 A.2d 834, 2001 R.I. LEXIS 160 (2001).

Comparative Negligence.

Because liability was not an issue at a hearing to determine damages, any comparative negligence of the plaintiff that would have reduced the damages to which the plaintiff was entitled could not be determined. Calise v. Hidden Valley Condo. Ass'n, 773 A.2d 834, 2001 R.I. LEXIS 160 (2001).

Discovery After Default.

Defaulted defendants must be permitted to engage in the discovery process in order to effectively protect their rights at the damage assessment hearing. Bashforth v. Zampini, 576 A.2d 1197, 1990 R.I. LEXIS 121 (1990).

Effect of Amendment.

This is a procedural statute and consequently the 1958 amendment applies to existing actions. Pettis v. Henderson, 91 R.I. 191 , 162 A.2d 540, 1960 R.I. LEXIS 81 (1960).

Intervention of Jury.

At common law, the finding of a jury as to damages in defaulted cases was not a verdict but merely an inquest of office which the court could disregard at its discretion, and writ of inquiry of damages in defaulted cases was provided for in Rhode Island by statute of 1647 creating the “General Court of Tryalls.” Dyson v. Rhode Island Co., 25 R.I. 600 , 57 A. 771, 1904 R.I. LEXIS 146 (1904).

There was no statutory right to have damages in defaulted cases assessed by a jury at the time Constitution was adopted. Dyson v. Rhode Island Co., 25 R.I. 600 , 57 A. 771, 1904 R.I. LEXIS 146 (1904).

This statute neither requires nor prohibits the court from calling a jury, and the court may exercise its discretion. Dyson v. Rhode Island Co., 25 R.I. 600 , 57 A. 771, 1904 R.I. LEXIS 146 (1904).

The court has inherent power to adopt the finding of the jury or to make a different assessment in a greater or lesser amount. Dyson v. Rhode Island Co., 25 R.I. 600 , 57 A. 771, 1904 R.I. LEXIS 146 (1904).

This section as amended in 1958 is mandatory and where there is nothing in the record to show why there was no intervention of a jury the assessment of damages by the trial justice was invalid. Pettis v. Henderson, 91 R.I. 191 , 162 A.2d 540, 1960 R.I. LEXIS 81 (1960).

The amendments to this section have abrogated the decision in Pettis v. Henderson, 91 R.I. 191 , 162 A.2d 540 (1960) to the extent that its holding gave defendants in default cases the right to a determination of damages by a jury. Marks v. D.A. Davis Constr. Corp., 536 A.2d 883, 1988 R.I. LEXIS 6 (1988).

The right to have a jury assess damages in a default case rests with the nondefaulting party. Marks v. D.A. Davis Constr. Corp., 536 A.2d 883, 1988 R.I. LEXIS 6 (1988).

The holding in Marks v. D.A. Davis Constr. Corp., 536 A.2d 883 (R.I. 1988) merely articulates the right to an assessment of damages that a nondefaulting party has against a party against whom judgment has been entered by default pursuant to this section. The holding in Marks does not sweep so broadly as to preclude a nondefaulting codefendant from requesting a jury trial on the issue of damages, even when the other codefendant has defaulted. Carlson v. Plouffe, 593 A.2d 74, 1991 R.I. LEXIS 128 (1991).

New Trial.

In defaulted action, the question of whether damages as found by jury were excessive was not properly before the court on petition for new trial, where the court had neither approved nor disapproved such finding, as the act of the jury was not sufficient. Dyson v. Rhode Island Co., 25 R.I. 600 , 57 A. 771, 1904 R.I. LEXIS 146 (1904).

In case of default or submission, judgment ensues at once and there is no longer any issue in the case which can be retried. Clewley v. Rhode Island Co., 26 R.I. 485 , 59 A. 391, 1904 R.I. LEXIS 107 (1904); King v. Rhode Island Co., 27 R.I. 112 , 60 A. 837, 1905 R.I. LEXIS 40 (1905).

Punitive Damages.

Denial of plaintiff’s request for punitive damages was an abuse of discretion on the part of the trial justice where there was sufficient evidence of malice, wantonness and willfulness to support such an award. Sherman v. McDermott, 114 R.I. 107 , 329 A.2d 195, 1974 R.I. LEXIS 1068 (1974).

Review.

Appellate division was without authority to review the damages in a defaulted case. Clewley v. Rhode Island Co., 26 R.I. 485 , 59 A. 391, 1904 R.I. LEXIS 107 (1904); King v. Rhode Island Co., 27 R.I. 112 , 60 A. 837, 1905 R.I. LEXIS 40 (1905).

Collateral References.

Defaulting defendant’s right to notice and hearing as to determination of amount of damages. 15 A.L.R.3d 586.

Excessiveness or adequacy of damages awarded for injuries causing metal or psychological damage. 52 A.L.R.5th 1.

9-20-3. Repealed.

History of Section. C.P.A. 1905, § 353; G.L. 1909, ch. 291, § 6; G.L. 1923, ch. 341, § 6; G.L. 1938, ch. 534, § 2; G.L. 1956, § 9-20-3 ; Repealed by P.L. 1965, ch. 55, § 33, effective January 10, 1966. For special verdicts in superior court, see Super. Ct. R. Civ. P. Rule 49(a).

Compiler’s Notes.

Former § 9-20-3 concerned special verdicts.

9-20-4. Comparative negligence.

In all actions hereafter brought for personal injuries, or where personal injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property or person having control over the property, may not have been in the exercise of due care or the fact that the danger or defect was open and obvious shall not bar a recovery, but damages shall be diminished by the finder of fact in proportion to the amount of negligence attributable to the person injured, or the owner of the property or the person having control over the property.

History of Section. P.L. 1971, ch. 206, § 1; P.L. 1972, ch. 18, § 1; P.L. 2019, ch. 185, § 1; P.L. 2019, ch. 256, § 1.

Compiler’s Notes.

P.L. 2019, ch. 185, § 1, and P.L. 2019, ch. 256, § 1 enacted identical amendments to this section.

Applicability.

P.L. 2019, ch. 185, § 2 provides: “This act shall take effect upon passage [July 15, 2019]; however, the ‘open and obvious’ amendment shall only apply to personal injuries or personal injuries that have resulted in death or injury to property that occur after the passage of the act.”

P.L. 2019, ch. 256, § 2 provides: “This act shall take effect upon passage [July 15, 2019]; however, the ‘open and obvious’ amendment shall only apply to personal injuries or personal injuries that have resulted in death or injury to property that occur after the passage of the act.”

Law Reviews.

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

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

In General.

Comparative negligence does not serve as a bar to a plaintiff’s cause of action, since its net effect is to either to lessen a plaintiff’s recovery or to increase a defendant’s liability. Kay v. Menard, 754 A.2d 760, 2000 R.I. LEXIS 155 (2000).

The state comparative negligence statute is not a comparative fault statute, and thus comes into play only after negligence is first established on the part of both the plaintiff and the defendant. Calise v. Hidden Valley Condo. Ass'n, 773 A.2d 834, 2001 R.I. LEXIS 160 (2001).

The state’s comparative negligence statute does not address proportionate negligence between various defendants, but only permits comparison of either the negligence between a plaintiff and a defendant or, in the case of multiple defendants, the plaintiff and each particular defendant. Calise v. Hidden Valley Condo. Ass'n, 773 A.2d 834, 2001 R.I. LEXIS 160 (2001).

Assumption of Risk.

This section does not affect the validity of assumption of the risk as a complete bar to recovery. Kennedy v. Providence Hockey Club, 119 R.I. 70 , 376 A.2d 329, 1977 R.I. LEXIS 1872 (1977).

Assumption of the risk which is concerned with knowingly encountering the danger contrasts with the former defense of contributory negligence which is concerned with negligently encountering the danger. Kennedy v. Providence Hockey Club, 119 R.I. 70 , 376 A.2d 329, 1977 R.I. LEXIS 1872 (1977).

Burden of Proof.

Although proof of a rear-end collision is prima facie evidence of negligence against the driver of the car in the rear and the burden of explaining by evidence then shifts to the defendant, the ultimate burden of proof in the case on all issues is still on the plaintiff. Galusha v. Carlson, 120 R.I. 204 , 386 A.2d 634, 1978 R.I. LEXIS 652 (1978).

Contributory Negligence.

This section does not nullify the offsetting effect of a plaintiff’s contributory negligence, it merely alters the manner in which the negligence of the parties is taken into account. Raymond v. Jenard, 120 R.I. 634 , 390 A.2d 358, 1978 R.I. LEXIS 712 (1978).

Nonnegligence Actions.

This section applies to cases brought for breach of implied warranty only if the damages sought are for personal injuries sustained. If the action is brought for damage to the product itself, this section does not apply. Fiske v. MacGregor, 464 A.2d 719, 1983 R.I. LEXIS 1028 (1983).

Comparative-negligence principles apply to actions brought on theories of strict liability and breach of implied warranty, as well as actions brought on a negligence theory. Fiske v. MacGregor, 464 A.2d 719, 1983 R.I. LEXIS 1028 (1983).

The jury, in a strict-liability action or an implied-warranty action, may consider a plaintiff’s negligent encounter with danger if it decides that the plaintiff’s conduct does not reach that level of culpability that amounts to a knowing encounter with danger, that is, assumption of the risk. The damages should then be reduced by the percent the plaintiff is found to have been negligent. Fiske v. MacGregor, 464 A.2d 719, 1983 R.I. LEXIS 1028 (1983).

The provisions of this section apply to actions for personal injuries resulting from breach of warranty. Lariviere v. Dayton Safety Ladder Co., 525 A.2d 892, 1987 R.I. LEXIS 481 (1987).

— Misrepresentation.

This section is not applicable to cases that involve pecuniary damages to an aggrieved party resulting from misrepresentation. Estate of Braswell v. People's Credit Union, 602 A.2d 510, 1992 R.I. LEXIS 11 (1992).

Out-Of-State Injury.

It was error for the trial justice to apply the state’s “pure” comparative negligence statute in a case in which the injury and the conduct allegedly causing the injury occurred in Massachusetts, since the defendant’s headquarters and place of business at issue were in that state and the parties might reasonably have expected Massachusetts law to apply. Najarian v. Nat'l Amusements, Inc., 768 A.2d 1253, 2001 R.I. LEXIS 93 (2001).

Rescue Doctrine.

The rescue doctrine survives the adoption of the comparative-negligence statute and the principles of comparative negligence apply only if a defendant establishes that the rescuer’s actions were rash or reckless. Ouellette v. Carde, 612 A.2d 687, 1992 R.I. LEXIS 169 (1992).

Retroactive Application.

The fact that the language of this section was specifically changed from “in any action accruing on and after July 1, 1971, . . .” to “[i]n all actions hereafter brought, . . .” firmly establishes the intent of the legislature that the section apply retroactively. Raymond v. Jenard, 120 R.I. 634 , 390 A.2d 358, 1978 R.I. LEXIS 712 (1978).

Two major factors to be weighed in determining the validity of a retroactive statute are the strength of the public interest it serves and the unfairness created by its retroactive operation, and the reliance of the parties on preexisting law is perhaps the most accurate gauge of the latter. Raymond v. Jenard, 120 R.I. 634 , 390 A.2d 358, 1978 R.I. LEXIS 712 (1978).

The test of unfairness as to retroactive application of a statute is not whether formerly impossible recovery is now possible, but whether “settled expectations honestly arrived at with respect to substantial interests” are being defeated. Raymond v. Jenard, 120 R.I. 634 , 390 A.2d 358, 1978 R.I. LEXIS 712 (1978).

Abrogation of a defendant’s right to rely on the preexisting rule (of contributory negligence) by retroactive application of this section (providing for comparative negligence) was not inequitable, as the public interest served thereby far outweighs the minimal harshness caused by the retroactive application. Raymond v. Jenard, 120 R.I. 634 , 390 A.2d 358, 1978 R.I. LEXIS 712 (1978).

Collateral References.

Applicability of comparative negligence doctrine to actions based on negligent misrepresentation. 22 A.L.R.5th 464.

Applicability of comparative negligence principles to intentional torts. 18 A.L.R.5th 525.

Comparative fault: calculation of net recovery by applying percentage of plaintiff ’s fault before or after subtracting amount of settlement by less than all joint tort-feasors. 71 A.L.R.4th 1108.

Comparative negligence: contributory negligence and assumption of risk in action against owner of store, office, or similar place of business by invitee falling on tracked-in water or snow. 83 A.L.R.5th 589.

Comparative negligence: judgment allocating fault in action against less than all potential defendants as precluding subsequent action against parties not sued in original action. 4 A.L.R.5th 753.

Comparative negligence of driver as defense to enhanced injury, crashworthiness, or second collision claim. 69 A.L.R.5th 625.

Contributory negligence or comparative negligence based on failure of patient to follow instructions as defense in action against physician or surgeon for medical malpractice. 84 A.L.R.5th 619.

Modern status of rule imputing motor vehicle driver’s negligence to passenger on joint venture theory. 3 A.L.R.5th 1.

Rescue doctrine: applicability and application of comparative negligence principles. 75 A.L.R.4th 875.

9-20-4.1. No setoff of damages.

There shall be no setoff of damages between the respective parties.

History of Section. P.L. 1971, ch. 206, § 1.

NOTES TO DECISIONS

Multiple Defendants.

The state’s comparative negligence statute does not address proportionate negligence between various defendants, but only permits comparison of either the negligence between a plaintiff and a defendant or, in the case of multiple defendants, the plaintiff and each particular defendant. Calise v. Hidden Valley Condo. Ass'n, 773 A.2d 834, 2001 R.I. LEXIS 160 (2001).

9-20-5. Assumption of risk in use of off-road vehicles.

  1. Notwithstanding the provisions of § 9-20-4 , in any legal action against the state or any political subdivision thereof, an operator or passenger of: (1) a recreational vehicle as defined in § 31-3.2-1(8) or (2) a snowmobile as defined in § 31-3.2-1(11) , or (3) an all terrain vehicle (A.T.V.), or (4) a motor vehicle primarily designed for use off public roads, shall while on state property assume as a matter of law the risks inherent in such operation insofar as they are obvious and necessary.
  2. The director of the department of environmental management shall post signs warning operators and passengers that they assume the risk of injury while on state property. Provided, however, that the lack of signs shall not be admissible in a suit for negligence.

History of Section. P.L. 1987, ch. 535, § 1; P.L. 1997, ch. 326, § 71; P.L. 2004, ch. 6, § 8.

Chapter 21 Judgments, Orders, and Decrees

9-21-1. Repealed.

History of Section. C.P.A. 1905, § 427; G.L. 1909, ch. 294, § 1; G.L. 1923, ch. 344, § 1; G.L. 1938, ch. 535, § 1; G.L. 1956, § 9-21-1 ; Repealed by P.L. 1965, ch. 55, § 35, effective January 10, 1966. The provisions for entry of judgment in superior court are contained in Civil Procedure Rules 58, 77(d). For forms of judgment, see Super. Ct. R. Civ. P., Forms 31, 32. For entry of judgment in district court, see Dist. Ct. R. Civ. P. Rule 58.

Compiler’s Notes.

Former § 9-21-1 concerned time for entry of judgment.

9-21-2. Relief from judgment or decree.

  1. On motion and upon such terms as are just, a court may relieve a party or his or her legal representative from a final judgment, order, decree, or proceeding entered therein for the following reasons:
    1. Mistake, inadvertence, surprise, or excusable neglect;
    2. Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under applicable law;
    3. Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
    4. The judgment is void;
    5. The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
    6. Any other reason justifying relief from the operation of the judgment.
  2. The motion shall be made within a reasonable time and not more than one year after the judgment, order, or proceeding was entered or taken.

History of Section. C.P.A. 1905, § 428; G.L. 1909, ch. 294, § 2; G.L. 1923, ch. 344, § 2; G.L. 1938, ch. 535, § 2; G.L. 1956, § 9-21-2 ; P.L. 1965, ch. 55, § 36.

Rules of Court.

For rule for amendment of judgment, see Super. Ct. R. Civ. P. Rule 59(e).

Cross References.

Default judgment against unauthorized insurer, § 27-16-8 .

Comparative Legislation.

Modification of judgments:

Conn. Gen. Stat. § 52-212.

Mass. Ann. Laws, ch. 231, § 56.

NOTES TO DECISIONS

In General.

Under this section a movant must establish a factual basis justifying the conclusion that the judgment, order or decree was obtained in a manner which constitutes a ground for relief as a matter of law. Pasquazzi v. Pasquazzi, 119 R.I. 554 , 381 A.2d 233, 1977 R.I. LEXIS 2056 (1977).

This section relates exclusively to civil judgments and orders. In re Crepeau-Cross, 120 R.I. 67 , 385 A.2d 658, 1978 R.I. LEXIS 639 (1978).

If the trial court’s decision is correct, it is not germane that the conclusion was reached through faulty reasoning or a mistake of law, and it is well settled that an order or judgment that is correct notwithstanding the erroneous reasoning upon which it rests will be sustained. Souza v. O'Hara, 121 R.I. 88 , 395 A.2d 1060, 1978 R.I. LEXIS 763 (1978).

Although a purchaser at a mortgage foreclosure sale was entitled to notice of a subsequent tax sale because at the time of the tax sale, the controlling statute, former R.I. Gen. Laws § 44-9-11 , had not been amended, and the revised statute, R.I. Gen. Laws § 44-9-11 , amended by 2002 R.I. Pub. Laws ch. 140, § 1, was not retroactively controlling in the instant appeal, the purchaser was bound by the previous mandates governing foreclosure petitions; R.I. Gen. Laws § 44-9-31 explicitly provided that the failure to raise any question concerning the validity of a tax title on or before the return day would result in the party’s being forever barred from contesting or raising the question in any other proceeding, and therefore the judgment entered upon the tax foreclosure petition was not void, under R.I. Gen. Laws § 9-21-2(a)(4) . Kildeer Realty v. Brewster Realty Corp., 826 A.2d 961, 2003 R.I. LEXIS 173 (2003).

Adoption Proceedings.

Where a final decree of adoption is sought to be set aside on grounds of undue influence, a finding of undue influence is warranted only where the evidence shows that the influence was exerted to such a degree as to amount to force or coercion, destroying the free agency of the natural parent whose consent was secured, and it is not required that the consent of a natural parent to surrender her child be given free from the emotions, tensions and pressures inherent in the situation. In re Adoption of Minor Child, 109 R.I. 443 , 287 A.2d 115, 1972 R.I. LEXIS 1207 (1972).

Amendment of Decree.

Where guarantor had, since the original decree, lost the right to file a claim against his principal, he could object to the amendment of the decree in such a manner as to make him liable as guarantor. Cohen v. Ideal Home Equip. Co., 84 R.I. 122 , 122 A.2d 145, 1956 R.I. LEXIS 31 (1956).

Approval by Court.

Default judgment could not be set aside, even by consent of parties, without action by court. Way v. Superior Court, 42 R.I. 444 , 108 A. 696, 1920 R.I. LEXIS 12 (1920).

Concurrent Jurisdiction.

Jurisdiction of the trial court under this section and of the supreme court under former § 9-21-4 is concurrent during the six-month period (now one year) provided in this section and the supreme court will not disturb the determination of the trial court unless it appears that there was an abuse of discretion or error of law. Moore v. Stillman, 28 R.I. 470 , 68 A. 419, 1907 R.I. LEXIS 86 (1907); Milbury Atl. Mfg. Co. v. Rocky Point Amusement Co., 44 R.I. 458 , 118 A. 737, 1922 R.I. LEXIS 73 (1922); Feldman v. Silva, 54 R.I. 202 , 171 A. 922, 1934 R.I. LEXIS 43 (1934). See also Curry v. Swett, 13 R.I. 476 , 1881 R.I. LEXIS 54 (1881); Kinkead v. Keene, 22 R.I. 336 , 47 A. 887, 1901 R.I. LEXIS 10 (1901); Cascia v. Gilbane, 26 R.I. 584 , 60 A. 237, 1905 R.I. LEXIS 12 (1905).

Defendant who has elected to proceed under this section cannot later proceed in the supreme court under former § 9-21-4 , even though his petition under this section is dismissed for want of jurisdiction. Martin v. Weeks, 72 R.I. 436 , 52 A.2d 507, 1947 R.I. LEXIS 24 (1947).

Consent Decrees.

A consent decree is final and binding so that it cannot be vacated, modified, negated, amended and/or affected without the mutual consent of the parties thereto and/or those affected thereby. Although a party may have second thoughts following a later court decision in another case, a party may not unilaterally walk away from its obligations thereunder. Mansolillo v. Employee Retirement Bd., 668 A.2d 313, 1995 R.I. LEXIS 275 (1995).

Correcting Record.

A court cannot set a judgment aside and reinstate a case after expiration of six-month period (now one year), but it can always correct its record to conform with the truth. Hearn v. Canning, 27 R.I. 217 , 61 A. 602, 1905 R.I. LEXIS 75 (1905).

Date From Which Period Runs.

The six-month period of this section prior to the 1965 amendment did not run from date of original entry of default but from the date of final entry of judgment. Rondeau v. People's Loan & Trust Co., 33 R.I. 107 , 80 A. 177, 1911 R.I. LEXIS 104 (1911).

Default Judgment.

Defendant who answered but who failed to appear on day for hearing on motion for summary judgment or to offer any defense was in default. Dimond v. Marwell, 57 R.I. 477 , 190 A. 683, 1937 R.I. LEXIS 122 (1937).

In the absence of an affidavit of defense at the time the trial justice passed on defendant’s motion to have default removed, the justice erred in granting such motion. Lombardi v. Rao, 88 R.I. 226 , 146 A.2d 12, 1958 R.I. LEXIS 116 (1958).

Where defendant seeks to set aside default judgment it is not enough to merely state that he can offer a meritorious defense to the action but he must show a prima facie defense. Pettis v. Henderson, 91 R.I. 191 , 162 A.2d 540, 1960 R.I. LEXIS 81 (1960).

A motion to vacate a judgment by default is addressed to the judicial discretion of the court which entered the judgment in the first instance and upon review the Supreme Court will not set aside the action of an inferior court upon such a motion unless it appears that there has been an abuse of discretion or that the decision is based upon an error of law. Pettis v. Henderson, 91 R.I. 191 , 162 A.2d 540, 1960 R.I. LEXIS 81 (1960).

— Counsel’s Actions.

Default judgment vacated since the original attorney not only abandoned the case by his inaction but frustrated his client’s efforts to retain new counsel. Palazzolo v. Coastal Resources Management Council, 657 A.2d 1050, 1995 R.I. LEXIS 122 (1995).

In a foreclosure sale, where the buyer’s counsel engaged in a direct phone call with one of the owners who was represented by counsel, the buyer’s counsel violated R.I. Sup. Ct. art. V, R. 4.2; the phone conversation between the buyer’s counsel and the owner related to an agreement between the parties, this violation by the buyer’s counsel supported the opposing party’s argument that a later default decree foreclosing their redemption rights to property should have been vacated on the grounds of excusable neglect under R.I. Gen. Laws § 9-21-2(a) . Pleasant Mgmt., LLC v. Carrasco, 870 A.2d 443, 2005 R.I. LEXIS 61 (2005).

Discretion of Court.

Relief from a judgment, order or decree under this section rests in the sound judicial discretion of the court guided by accepted legal principles. In re Julie, 114 R.I. 419 , 334 A.2d 212, 1975 R.I. LEXIS 1431 (1975); Pasquazzi v. Pasquazzi, 119 R.I. 554 , 381 A.2d 233, 1977 R.I. LEXIS 2056 (1977).

Divorce Proceedings.

Where a divorce is granted by default the court within the period prescribed by law may, upon showing that probably no notice of the action was had despite duly returned summons therein, set aside the divorce order and reinstate the trial on the motion of the party defaulted. Locke v. Locke, 18 R.I. 716 , 30 A. 422, 1894 R.I. LEXIS 57 (1894).

Petition for alimony under former § 15-5-6 could be filed more than six months after entry of divorce decree which did not include alimony order, notwithstanding provisions of this section (then requiring a petition to set aside judgment within six months,) since alimony decree did not change, modify, or otherwise affect divorce decree. Wilford v. Wilford, 38 R.I. 55 , 94 A. 685, 1915 R.I. LEXIS 41 (1915).

Where plaintiff wife was granted an interlocutory decree of divorce on grounds of extreme mental cruelty in her unanswered divorce case heard some nine months after it was set for hearing; where there was no actual notice of the hearing to defendant husband or any motion to assign the case to the calendar for hearing in accordance with family court Rule 19; and where, during such nine-month period, plaintiff and defendant resumed marital relations for a time, thereby raising the defense of condonation; defendant was entitled to have the interlocutory decree set aside and to have an opportunity to raise the defense of condonation at a new hearing. Baton v. Baton, 109 R.I. 115 , 281 A.2d 295, 1971 R.I. LEXIS 1032 (1971).

Amended final divorce decree was proper subject matter for accord and satisfaction which was binding upon former wife where fully complied with by former husband and where supported by sufficient consideration. Vaillancourt v. Vaillancourt, 449 A.2d 885, 1982 R.I. LEXIS 1087 (1982).

Equitable Relief.

Defendant in district court who moved that consent judgment be vacated, execution recalled, and case reinstated for trial, could not go into equity and seek vacation of judgment, since he had adequate relief in district court. Ell v. Messerlian, 75 R.I. 458 , 67 A.2d 703, 1949 R.I. LEXIS 71 (1949).

Equity Causes.

Decision in divorce proceeding was not a decree in a cause following the course of equity within the meaning of former provision of this section. David v. David, 47 R.I. 122 , 130 A. 861, 1925 R.I. LEXIS 71 (1925).

Probate appeal heard on the merits by justice of superior court sitting without a jury was not a cause following the course of equity within the meaning of former provision of this section. Streeter v. Millman, 68 R.I. 456 , 29 A.2d 635, 1942 R.I. LEXIS 92 (1942).

Court’s requirment that sellers specifically perform real estate agreement was not an abuse of discretion as the buyer timely applied for new loan after the first loan was rejected on the closing date, got the second loan commitment in 10 days, and was ready, willing, and able to perform. Lajayi v. Fafiyebi, 860 A.2d 680, 2004 R.I. LEXIS 176 (2004).

— Consent Decrees.

The superior court cannot set aside a decree taken by consent of the parties in an equity proceeding unless the parties consent thereto. Hyde v. Superior Court, 28 R.I. 204 , 66 A. 292, 1907 R.I. LEXIS 20 (1907).

— Decrees Pro Confesso.

This section applied to equity decrees pro confesso notwithstanding the provisions of former § 9-14-18 providing for a five-day period to set aside a pro confesso decree. Masterson v. Whipple, 27 R.I. 192 , 61 A. 446, 1905 R.I. LEXIS 70 (1905); Katersky v. P. D. Humphrey Co., 49 R.I. 181 , 142 A. 147, 1928 R.I. LEXIS 32 (1928).

Extension of Time for Appeals and Exceptions.

District court had no power to vacate decision in an action of trespass and ejectment simply to allow defendant more time to file bond for jury trial. Whitaker v. Bliss, 23 R.I. 313 , 50 A. 266, 1901 R.I. LEXIS 133 (1901).

Courts are without the power to extend the time for filing appeals, exceptions and similar proceedings through vacating judgment. Whitaker v. Bliss, 23 R.I. 313 , 50 A. 266, 1901 R.I. LEXIS 133 (1901); Bottum & Torrance Co. v. Consolidated Yarns, 53 R.I. 50 , 163 A. 544, 1933 R.I. LEXIS 21 (1933).

Family Court.

Rule 12(b)(6) of the Superior Court Rules of Civil Procedure has no application in a motion to vacate in family court and since the family court has no specific rule applicable to motions to vacate, the motion is filed exclusively under the authority of this section. In re Julie, 114 R.I. 419 , 334 A.2d 212, 1975 R.I. LEXIS 1431 (1975).

Late Pleadings.

This section implies authority in the court to permit late filing of a defense since otherwise it would do little good to have a default judgment set aside. Johnson v. Hoxsie, 19 R.I. 703 , 36 A. 720, 1897 R.I. LEXIS 10 (1897).

Meritorious Defense.

Petitioner under this section should show that he has a defense to the action that is prima facie meritorious and which in good faith he wishes to present at the trial. Milbury Atl. Mfg. Co. v. Rocky Point Amusement Co., 44 R.I. 458 , 118 A. 737, 1922 R.I. LEXIS 73 (1922); Nelen v. Wells, 45 R.I. 424 , 123 A. 599, 1924 R.I. LEXIS 17 (1924).

The trial justice should have afforded respondent in divorce action an opportunity to be heard on her petition to vacate decision, considering that she filed her motion within six months of the decision, advancing in defense of her failure to answer the contention that the language of the law creating the family court indicated that no valid citation was made which would have required her to answer. Carvalho v. Carvalho, 97 R.I. 132 , 196 A.2d 164, 595, 1963 R.I. LEXIS 139 (1963).

Denial by trial justice of motion to set aside interlocutory decree entered on husband’s petition for absolute divorce was abuse of discretion where a statement of meritorious defense was set out in the affidavit and the sufficiency of such statement was not questioned. Pate v. Pate, 97 R.I. 183 , 196 A.2d 723, 1964 R.I. LEXIS 59 (1964).

The existence of a meritorious defense and the facts constituting the same may be shown by the affidavit of the defendant’s attorney even though he does not have personal knowledge of such facts. Fiske v. Marino, 100 R.I. 758 , 219 A.2d 471, 1966 R.I. LEXIS 508 (1966).

A motion to set aside a default, which failed to set out the nature of defendant’s defense to the action or to refer to such a defense beyond the mere statement in his supporting affidavit, “That I have a defense and counterclaim to this action,” was insufficient to authorize the setting aside of the default and the trial court’s action in doing so was reversible error. Metcalf v. Cerio, 103 R.I. 157 , 235 A.2d 669, 1967 R.I. LEXIS 591 (1967).

As defendants established that their failure to appear at the hearing on plaintiff’s motion to foreclose their right of redemption was due to excusable neglect, and established a meritorious defense by proving that had they attended the hearing, they would have been able to pay all the sums due under the parties’ redemption agreement, a default decree in favor of plaintiff was vacated pursuant to R.I. Gen. Laws § 9-21-2(a) . Pleasant Mgmt., LLC v. Carrasco, 960 A.2d 216, 2008 R.I. LEXIS 112 (2008).

Misrepresentation.

Fraud is not necessary to constitute misrepresentation, since innocent misrepresentation will suffice within the sound discretion of the court. In re Julie, 114 R.I. 419 , 334 A.2d 212, 1975 R.I. LEXIS 1431 (1975).

Mistake.

Failure of defendant to object to costs did not constitute such mistake as to authorize court to vacate and revise judgment under this section. Bottum & Torrance Co. v. Consolidated Yarns, 53 R.I. 50 , 163 A. 544, 1933 R.I. LEXIS 21 (1933).

Mistake of law by one of the parties in preparing the decree was not valid ground for amendment of decree under this section. Cohen v. Ideal Home Equip. Co., 84 R.I. 122 , 122 A.2d 145, 1956 R.I. LEXIS 31 (1956).

In proceeding where default judgment was taken because defendant had placed wrong case number on pleading which would have stayed judgment, court was within its discretion in vacating judgment on basis of mistake of fact. Pono v. Cataldo, 89 R.I. 242 , 152 A.2d 99, 1959 R.I. LEXIS 67 (1959).

— Premature Judgment.

Plaintiff should have, despite prematurely entered judgment, filed notice to prosecute exceptions, then moved to have judgment set aside under this section. Baus v. Coffey, 53 R.I. 227 , 165 A. 593, 1933 R.I. LEXIS 69 (1933).

Notice to Parties.

A court has no jurisdiction to set aside a default judgment without previous notice to all parties. Chapdelaine v. Handy, 18 R.I. 706 , 30 A. 342, 1894 R.I. LEXIS 54 (1894).

Divorce decree could not be vacated without notice to adverse party. David v. David, 47 R.I. 122 , 130 A. 861, 1925 R.I. LEXIS 71 (1925).

The failure to give wife any notice of and reasonable opportunity to be heard on husband’s application to suspend payments for support of children ordered by the original decree rendered the suspension order void and defeated family court’s jurisdiction. Lamarche v. Lamarche, 108 R.I. 213 , 273 A.2d 860, 1971 R.I. LEXIS 1250 (1971).

Powers After One Year Period.

This statute has the effect of terminating the authority of the court to vacate or otherwise alter its judgments after the expiration of the period of time therein set out. Porter Trucking Co. v. Carolina Freight Carriers Corp., 96 R.I. 503 , 194 A.2d 834, 1963 R.I. LEXIS 117 (1963).

A court had no jurisdiction to amend a decree, so as to include interest on the amount of damages awarded, more than two years after its rendition. Rhode Island Dairy Queen v. Burke, 101 R.I. 644 , 226 A.2d 420, 1967 R.I. LEXIS 813 (1967).

Motions to vacate decrees in the family court must be filed under the authority of this section and if the time limit set for the court to hear the motion had expired the family court lacks jurisdiction to entertain the petition. Bianchini v. Bianchini, 416 A.2d 123, 1980 R.I. LEXIS 1655 (1980).

— Separation Agreement.

Because the circumstances of the parties had progressed beyond a point contemplated by the original separation agreement and the family court had the power to construe the agreement pursuant to § 8-10-3 , the one-year time limit barring a motion for relief from a judgment or decree pursuant to subsection (b) of this section and the parallel prohibition pursuant to Rule 60 of the Rules of Procedure for Domestic Relations were inapplicable. Vickers Antone v. Vickers, 610 A.2d 120, 1992 R.I. LEXIS 167 (1992).

Probate Appeals.

Docket entry constituting decision in probate appeal could not be vacated except for reasons stated in this section. Ashaway Nat'l Bank v. Superior Court, 28 R.I. 355 , 67 A. 523, 1907 R.I. LEXIS 61 (1907).

Review.

Power to set aside judgment and reinstate case for cause shown within prescribed period after entry of judgment by default or by mistake is discretionary in the court where judgment was rendered, and when such discretion has been exercised it is not subject to review by the supreme court. Opie v. Clancy, 27 R.I. 42 , 60 A. 635, 1905 R.I. LEXIS 21 (1905). See also Kinkead v. Keene, 22 R.I. 336 , 47 A. 887, 1901 R.I. LEXIS 10 (1901); Cascia v. Gilbane, 26 R.I. 584 , 60 A. 237, 1905 R.I. LEXIS 12 (1905).

A bill of exceptions will not lie to review a ruling of the superior court under this section. In re Stillman, 28 R.I. 298 , 67 A. 4, 1907 R.I. LEXIS 36 (1907).

Since the granting of petitions under this section is in the discretion of the court, the supreme court will not set aside the determination of the trial court unless there is an abuse of discretion or error of law. Moore v. Stillman, 28 R.I. 470 , 68 A. 419, 1907 R.I. LEXIS 86 (1907); Milbury Atl. Mfg. Co. v. Rocky Point Amusement Co., 44 R.I. 458 , 118 A. 737, 1922 R.I. LEXIS 73 (1922); Nelen v. Wells, 45 R.I. 424 , 123 A. 599, 1924 R.I. LEXIS 17 (1924); Feldman v. Silva, 54 R.I. 202 , 171 A. 922, 1934 R.I. LEXIS 43 (1934).

Writ of error to review action of district court in removing default judgment would be dismissed where nothing in the record showed district court acted without sufficient legal cause, as such error could not be presented extrinsically by means of affidavits. Paterie v. Davignon, 38 R.I. 585 , 96 A. 819, 1916 R.I. LEXIS 13 (1916).

Writ of error would not lie to review action of district court in removing default judgment, since such action was merely interlocutory and not a final judgment. Paterie v. Davignon, 38 R.I. 585 , 96 A. 819, 1916 R.I. LEXIS 13 (1916).

In the absence of anything contrary on the record, supreme court must presume district court had legal cause for removing default. Paterie v. Davignon, 38 R.I. 585 , 96 A. 819, 1916 R.I. LEXIS 13 (1916); Dimond v. Marwell, 57 R.I. 477 , 190 A. 683, 1937 R.I. LEXIS 122 (1937).

On appeal from decree denying vacation of decree the court will consider only those questions that might have been presented on petition to vacate, not those which might have been presented on appeal from the original decree. Kimball v. Massachusetts Accident Co., 44 R.I. 271 , 117 A. 230, 1922 R.I. LEXIS 40 (1922).

Where the record was devoid of any evidence that would serve to supply the absence of an affidavit of defense and on the contrary the transcript showed that the trial justice granted the defendant’s motion because he was opposed to defaults, this was a clear abuse of judicial discretion. Lombardi v. Rao, 88 R.I. 226 , 146 A.2d 12, 1958 R.I. LEXIS 116 (1958).

Motions made pursuant to this statute are addressed to the sound judicial discretion of the court and, unless it appears that the trial justice abused his discretion or made his determination on an error of law, that determination will not be disturbed by this court on review. Pate v. Pate, 97 R.I. 183 , 196 A.2d 723, 1964 R.I. LEXIS 59 (1964).

Where the court vacated a nil dicit judgment on condition that the defendant pay costs and plaintiff’s counsel fee, plaintiff’s acceptance of such costs and counsel fee from defendant precluded his having a review of such action of the court. Colvin v. Goldenberg, 101 R.I. 338 , 223 A.2d 350, 1966 R.I. LEXIS 394 (1966).

Defendant’s proper avenue of review of denial of his motion to remove default judgment entered by the district court was by de novo appeal in the superior court as provided by law not by petition for common law certiorari to the supreme court. Burns Elec. Supply Co. v. Westmoreland, 116 R.I. 332 , 356 A.2d 479, 1976 R.I. LEXIS 1282 (1976).

Sufficiency of Cause.

Want of jurisdiction in the court could not be the basis for setting aside a decree where the question of jurisdiction was fully litigated at the trial. Paine v. Paine, 43 R.I. 478 , 113 A. 658, 1921 R.I. LEXIS 18 (1921).

Cause sufficient to support a modification of a specific performance decree was apparently shown where modifying decree referred to admissions of counsel that respondent had not tendered a sufficient deed. Bishop v. Superior Court, 50 R.I. 13 , 144 A. 433, 1929 R.I. LEXIS 4 (1929).

Superior court could vacate decision in divorce proceeding on representations by counsel that respondent had obtained a divorce from bed and board in another state, that petitioner was behind in support payments under such other decree, and that respondent had excuse for not appearing at trial. Harrington v. Harrington, 66 R.I. 363 , 19 A.2d 315, 1941 R.I. LEXIS 40 (1941).

Petition by plaintiff to vacate judgment against defendant so that plaintiff’s motion to charge garnishee could be admitted was properly denied by trial court, where no mistake or fraud in the judgment was shown. Seaporcel Metals v. Ciccone, 92 R.I. 31 , 166 A.2d 130, 1960 R.I. LEXIS 134 (1960).

Where petitioner had notice that her attorney had withdrawn from the case and that she would be required to obtain a new attorney there was no abuse by the trial court in refusing to hold a trial after the petition had been dismissed for want of appearance. Pate v. Pate, 97 R.I. 183 , 196 A.2d 723, 1964 R.I. LEXIS 59 (1964).

Where a defendant, by reason of physical disability, was unable to appear in court during the eleven months between service upon her of a motion to assign the cause for trial and the rendering of a default judgment and was without counsel during said time, her attorneys having withdrawn their appearance without notice to her and without filing in court her last known address nor affidavit concerning her military service, it was not an abuse of discretion for the trial court to set the default aside. Wright v. Delgiudice, 100 R.I. 234 , 213 A.2d 811, 1965 R.I. LEXIS 380 (1965). (Decision rendered prior to 1965 amendment, when six month period for setting aside judgments was in effect.)

Where a few minutes before the time set for trial, counsel for defendant informed counsel for plaintiff that he no longer represented defendant and, after efforts to contact defendant, plaintiff defaulted defendant, and where defendant showed by affidavit that it had not been notified by its former counsel of the setting of the case for trial and averred facts which, if true, constituted a meritorious defense, it was not an abuse of discretion to set the default aside. Lebanon Steel Foundry v. Efco Hydraulics, 100 R.I. 749 , 219 A.2d 478, 1966 R.I. LEXIS 507 (1966).

Under this section prior to the 1965 amendment, neglect or inattention of counsel did not in and of itself constitute accident, mistake, or unforeseen cause. King v. Brown, 102 R.I. 42 , 227 A.2d 589, 1967 R.I. LEXIS 642 (1967). (Continued for reargument on possible application of 1965 amendment to case, which arose before, but was heard after amendment.)

An attorney’s unexplained failure to tend to a writ of summons given to him to defend does not constitute a ground for relieving the defendant from a default. King v. Brown, 102 R.I. 42 , 235 A.2d 874 (1967).

Where defendant defaults under this section, the judgment will not be set aside where there is complete absence of any evidence that the neglect present in this case was occasioned by some extenuating circumstances of sufficient significance to render it excusable. Fields v. S. & M. Foods, 105 R.I. 161 , 249 A.2d 892, 1969 R.I. LEXIS 732 (1969).

Since defendant failed to satisfy the threshold test outlined in State v. Brown , 528 A.2d 1098 (R.I. 1987), his motion for a new trial was properly denied. State v. Vendetti, 655 A.2d 686, 1995 R.I. LEXIS 59 (1995).

Since the plaintiff’s counsel communicated directly with one of the defendants, who had an attorney, this violation of the anti-contact rule led to excusable neglect by defendants as it caused them to believe the matter was resolved and to thus fail to appear at the hearing on plaintiff’s motion to foreclose their right of redemption; therefore, a default decree in favor of plaintiff was vacated pursuant to R.I. Gen. Laws § 9-21-2(a) . Pleasant Mgmt., LLC v. Carrasco, 960 A.2d 216, 2008 R.I. LEXIS 112 (2008).

Supreme Court Power.

The power conferred on the courts in this section is, in its nature and in regard to the restrictions which should govern its exercise, identical with the power given to the supreme court in former § 9-21-4 . Milbury Atl. Mfg. Co. v. Rocky Point Amusement Co., 44 R.I. 458 , 118 A. 737, 1922 R.I. LEXIS 73 (1922).

Collateral References.

Amendment of record of judgment in state civil case to correct judicial errors and omissions. 50 A.L.R.5th 653.

Clerical errors in judgments, correction of. 10 A.L.R. 526; 67 A.L.R. 828; 126 A.L.R. 956.

Consent judgment, power to open. 139 A.L.R. 421.

Fraud in obtaining or maintaining default judgment as ground for vacating or setting aside in state courts. 78 A.L.R.3d 150.

Modification of judgment after expiration of prescribed period upon application made within that period. 168 A.L.R. 204.

Relief from Judgment due to Attorney’s Neglect or Error Concerning Judicial Electronic Filing (E-filing) Procedures. 27 A.L.R.7th Art. 7 (2018).

9-21-3. Interlocutory decrees and orders entered by clerk.

The supreme or superior court may by rule authorize the clerk to enter up interlocutory decrees and orders when appropriate, subject to be set aside or varied upon application and notice.

History of Section. C.P.A. 1905, § 438; G.L. 1909, ch. 294, § 12; G.L. 1923, ch. 344, § 12; G.L. 1938, ch. 535, § 3; G.L. 1956, § 9-21-3 .

Cross References.

Decree for allowance to prosecute or defend in divorce proceedings, § 15-5-16 .

Interlocutory decrees in divorce proceedings, § 15-5-18 .

Collateral References.

Effect of nonsuit, dismissal or discontinuance of action on prior interlocutory order. 11 A.L.R.2d 1407.

Interlocutory ruling or order of one judge as binding on another in the same case. 132 A.L.R. 14.

9-21-4. Repealed.

History of Section. C. P. A. 1905, § 471; G.L. 1909, ch. 297, § 1; G.L. 1923, ch. 347, § 1; G.L. 1938, ch. 535, § 4; G.L. 1956, § 9-21-4 ; P.L. 1965, ch. 55, § 36); Repealed by P.L. 1972, ch. 169, § 7.

Compiler’s Notes.

Former § 9-21-4 concerned supreme court order for trial where judgment entered by mistake, unforeseen cause or excusable neglect.

9-21-5. Supreme court order for new trial where trial was not full, fair, and impartial.

A party or garnishee in any action or proceeding in the superior court in which a trial has been had which was not full, fair, and impartial may, at any time within one year after judgment, petition the supreme court for a new trial; and the supreme court may, with or without terms, order a new trial in the superior court.

History of Section. C.P.A. 1905, § 472; G.L. 1909, ch. 297, § 2; G.L. 1923, ch. 347, § 2; G.L. 1938, ch. 535, § 5; G.L. 1956, § 9-21-5 ; P.L. 1965, ch. 55, § 36.

NOTES TO DECISIONS

In General.

A trial justice’s refusal to charge the jury is not a proper basis for a motion for a new trial. Belanger v. Silva, 120 R.I. 19 , 384 A.2d 605, 1978 R.I. LEXIS 629 (1978).

Absence of Witnesses.

New trial would not be granted because of the unexpected absence of a witness where it did not appear that continuance was asked. Potter v. Seth Padelford & Co., 3 R.I. 162 , 1855 R.I. LEXIS 24 (1855).

Amendment of Pleadings.

Where in probate appeal amended account filed day of trial of appeal did not come to the attention of a party until after trial, party was entered to relief under this section. Stillman v. Moore, 28 R.I. 548 , 68 A. 726, 1908 R.I. LEXIS 81 (1908).

Assignment for Trial.

Refusal of court to make an assignment of a day certain for trial was not ground for a new trial. Potter v. Seth Padelford & Co., 3 R.I. 162 , 1855 R.I. LEXIS 24 (1855).

Errors Correctable on Appeal.

The power of the supreme court to order a new trial in the superior court for any party whose trial in that court “was not full, fair, and impartial” does not extend to mere error by the trial court which is correctable on appeal. Patriarca v. State, 114 R.I. 94 , 329 A.2d 186, 1974 R.I. LEXIS 1066 (1974).

Errors of Law.

Petition under this section must show more than a mere error which would entitle petitioner to an exception. Bristow v. Nichols, 19 R.I. 719 , 37 A. 1033, 1897 R.I. LEXIS 18 (1897); Campbell v. Campbell, 29 R.I. 428 , 71 A. 1058, 1909 R.I. LEXIS 32 (1909); State v. Kemp, 37 R.I. 572 , 94 A. 429, 1915 R.I. LEXIS 29 (1915); McLaughlin v. Dunlop, 70 R.I. 452 , 40 A.2d 591, 1944 R.I. LEXIS 69 (1944).

Appellant was not entitled to new trial under this section based on limitation of witnesses by the trial court, since ruling could have been excepted to under former § 9-24-15. Campbell v. Campbell, 29 R.I. 428 , 71 A. 1058, 1909 R.I. LEXIS 32 (1909).

Improper charge to the jury, to which petitioner took exception, could not form the basis for relief under this section. Union Fabrics Corp. v. Tillinghast-Stiles Co., 61 R.I. 32 , 199 A. 700, 1938 R.I. LEXIS 22 (1938).

Objection that trial justice was sitting in violation of the statute prescribing vacation for the superior court at the time he granted motion for sentence in a criminal case did not form the basis for relief under this section. State v. Verde, 66 R.I. 33 , 17 A.2d 39, 1940 R.I. LEXIS 4 (1940).

Party who filed notice of intent to prosecute bill of exceptions but who failed to prosecute such bill could not obtain relief under this section on grounds which would have been proper for exceptions. Ritchie v. Sawyer, 75 R.I. 223 , 65 A.2d 458, 1949 R.I. LEXIS 33 (1949).

Jury Prejudice.

Defendant in criminal case could not get new trial under this section on ground that it was impossible for him to receive a fair trial due to public opinion and juror prejudice where he examined each juror as to prejudice and yet did not use all of his peremptory challenges and where the jurors were not allowed to separate and heard nothing of the case outside the courtroom. State v. Hathaway, 52 R.I. 492 , 161 A. 366, 1932 R.I. LEXIS 96 (1932).

Irregular communications with sequestered jury in a criminal case did not form the basis for relief under this section where it was shown that the communications did not prejudice the defendant. State v. Verde, 66 R.I. 33 , 17 A.2d 39, 1940 R.I. LEXIS 4 (1940).

Where an alternative juror was dismissed on the basis of his comment that he had made up his mind about the case, defendant’s motion to pass the case on the ground that another juror, who had been observed going to coffee with the dismissed alternative, appeared hostile and thus might have been infected by the alternate juror’s prejudice, was based on nothing more substantial than pure speculation, and the trial justice’s denial of said motion did not constitute the kind of patent abuse of discretion warranting interference by the Supreme Court. Belanger v. Silva, 120 R.I. 19 , 384 A.2d 605, 1978 R.I. LEXIS 629 (1978).

Where a witness mentioned defendant’s insurance coverage, the trial justice must pass the case if the reference to insurance so prejudiced the minds of the jurors as to render them incapable of reaching a fair and impartial verdict, or, in the alternative, give an appropriate cautionary instruction either when the reference to insurance is made or when he charges the jury if he believes that such an instruction will eliminate the possibility of prejudice in the jurors’ minds and that they can reasonably be expected to return a verdict based solely on the evidence, uninfluenced by the reference. Belanger v. Silva, 120 R.I. 19 , 384 A.2d 605, 1978 R.I. LEXIS 629 (1978).

Misjoinder of Counts.

Misjoinder of counts in a criminal prosecution could form a basis for relief under P.L. 1882, ch. 221, § 2. State v. Fitzsimon, 18 R.I. 236 , 27 A. 446, 1893 R.I. LEXIS 42 (1893).

Nonsuit.

Plaintiff whose case has been taken from the jury by an erroneous nonsuit has not had a full trial, so is entitled to a new trial. Thurston, Gardner & Co. v. Schroeder, 6 R.I. 272 , 1859 R.I. LEXIS 42 (1859).

Parties.

Cestui que trust who was not party to proceeding to declare trust void may not under this section obtain relief against decree. Primitive Methodist Church v. Homer, 38 R.I. 530 , 96 A. 818, 1916 R.I. LEXIS 12 (1916).

Petition for New Trial.

Petition for relief under § 9-21-6 could be treated as petition for relief under this section in case in which petitioner was entitled to such relief. Stillman v. Moore, 28 R.I. 548 , 68 A. 726, 1908 R.I. LEXIS 81 (1908).

Petition under this section for a new trial was deficient where it failed to disclose in what way the trial was unfair. Chapin v. Stone, 32 R.I. 311 , 79 A. 787, 1911 R.I. LEXIS 25 (1911).

Proceedings in Equity.

This section does not apply to proceedings in equity. Primitive Methodist Church v. Homer, 38 R.I. 530 , 96 A. 818, 1916 R.I. LEXIS 12 (1916); Ferrara v. Collins & Aikman Corp., 64 R.I. 98 , 10 A.2d 449, 1940 R.I. LEXIS 12 (1940).

Petition to review workmen’s compensation decision cannot be brought under this section since proceeding would be in equity. Ferrara v. Collins & Aikman Corp., 64 R.I. 98 , 10 A.2d 449, 1940 R.I. LEXIS 12 (1940).

Remedy Exclusive.

Motion for new trial under former § 9-23-1 on the ground that defendant did not have a fair and proper trial based on improper charge and statement to the jury could not be sustained, since proper and exclusive remedy for unfair trial is provided for in this section. State v. Papa, 32 R.I. 453 , 80 A. 12, 1911 R.I. LEXIS 63 (1911).

Collateral References.

Inattention of juror from sleepiness or other cause as ground for reversal or new trial. 59 A.L.R.5th 1.

9-21-6. Allowance of appellate proceedings after time expired.

When any person is aggrieved by an order, decree, decision, or judgment of the district court or of any probate court or town council from which an appeal or other review is available in the superior court and, because of accident, mistake, unforeseen cause, or excusable neglect has failed to claim his or her appeal, the superior court, if it appears that justice so requires, may, upon petition filed within ninety (90) days after the entry of the order, decree, decision, or judgment, allow an appeal to be taken and prosecuted upon such terms and conditions as the court may prescribe.

History of Section. P.L. 1973, ch. 204, § 1.

Repealed Sections.

The former section (C. P. A. 1905, § 473; G.L. 1909, ch. 297, § 3; G.L. 1923, ch. 347, § 3; G.L. 1938, ch. 535, § 6; G.L. 1956, § 9-21-6 ; P.L. 1965, ch. 55, § 36), concerning allowance of appellate proceedings after expiration of time, was repealed by P.L. 1972, ch. 169, § 7.

NOTES TO DECISIONS

Accident, Mistake or Unforeseen Cause, or Excusable Neglect.

Existence of “accident, mistake or unforeseen cause” is a condition precedent to granting of relief under this section. Bolster v. Bolster, 35 R.I. 367 , 87 A. 23, 1913 R.I. LEXIS 42 (1913).

Determination of “accident, mistake or unforeseen cause” is a question of law, but it can only be determined by a statement of facts concerning the alleged “accident, mistake or unforeseen cause.” Bolster v. Bolster, 35 R.I. 367 , 87 A. 23, 1913 R.I. LEXIS 42 (1913).

The words “accident, mistake and unforeseen” have been construed liberally for the purpose of granting relief in cases involving hardship. David v. David, 47 R.I. 139 , 131 A. 551, 1926 R.I. LEXIS 23 (1926); Colli v. Crown Piece Dye Works, 55 R.I. 494 , 182 A. 490, 1936 R.I. LEXIS 1 (1936), limited, McLeod v. Fleetwood Motor Sales, 83 R.I. 447 , 118 A.2d 921, 1955 R.I. LEXIS 82 (1955).

Where a party chooses not to file and prosecute a bill of exceptions and does so with full knowledge of all the material facts involved, and the cause is reversed on the adversary’s bill of exceptions, the party’s failure to file and prosecute a timely bill of exceptions is not accident, mistake or unforeseen cause within the meaning of this section. Union Fabrics Corp. v. Tillinghast-Stiles Co., 61 R.I. 32 , 199 A. 700, 1938 R.I. LEXIS 22 (1938).

Petitioner failed to establish accident, mistake or unforeseen cause in failure to appeal decision of superior court in workmen’s compensation decision wherein he was not represented by attorney but where reasonable steps were taken by trial justice to preserve and protect his rights. Ferrara v. Collins & Aikman Corp., 64 R.I. 98 , 10 A.2d 449, 1940 R.I. LEXIS 12 (1940).

Where solicitor for respondent after drawing final decree failed to submit it to solicitor for petitioner so that solicitor for petitioner had no notice that decree was entered and therefore failed to appeal within time, the failure of petitioner to claim an appeal in the equity case was due to an unforeseen cause and petition seeking to obtain appeal out of time was granted. Leary v. Leary, 87 R.I. 189 , 139 A.2d 472, 1958 R.I. LEXIS 39 (1958).

Relief cannot be made available to one under this statute who has lost his appeal by reason of mistake of law or by an act of negligence or dereliction on his own part. Ring v. Ring, 97 R.I. 509 , 199 A.2d 124, 1964 R.I. LEXIS 114 (1964).

Where petitioner had presented trial justice with form of decree in accordance with decision, he was charged with reasonably anticipating that the decree as prepared, would probably be entered by trial justice without further comment or delay, and fact that decree was entered without notice to petitioner did not constitute accidental mistake or unforeseen cause. Ring v. Ring, 97 R.I. 509 , 199 A.2d 124, 1964 R.I. LEXIS 114 (1964).

Reliance on an agreement by respondent not to object to a late filing of reasons for an appeal, made to permit the parties to confer, was not “excusable neglect” within the meaning of this section. Steinhof v. Keefer, 101 R.I. 472 , 224 A.2d 897, 1966 R.I. LEXIS 418 (1966).

Daughters’ failure to satisfy the requirements of R.I. Gen. Laws § 33-23-1 was the result of excusable neglect, and thus, justice required that their appeal be allowed to proceed; the letter from the probate court setting forth the cost of copying the certified record was not sent to the daughters’ counsel until after the due date for submitting the probate court record to the superior court had come and gone, and the cost had been properly and timely requested by counsel in writing. Duffy v. Estate of Scire, 111 A.3d 358, 2015 R.I. LEXIS 41 (2015).

— Burden of Proof.

Petitioner under this section had burden of proof to establish accident, mistake or unforeseen cause. Ferrara v. Collins & Aikman Corp., 64 R.I. 98 , 10 A.2d 449, 1940 R.I. LEXIS 12 (1940).

Petitioner who seeks to file an appeal out of time in probate proceeding has the burden of proof to show that delay was due to accident, mistake, or unforeseen cause. Balemian v. Adeian, 80 R.I. 16 , 90 A.2d 766, 1952 R.I. LEXIS 4 (1952).

Petitioner did not sustain burden of proof where allegations based on general statements were met by affidavits of adverse party which specified dates and were in detail. Balemian v. Adeian, 80 R.I. 16 , 90 A.2d 766, 1952 R.I. LEXIS 4 (1952).

To invoke the statutory authority conferred upon the court under this statute, the petitioner has the burden of establishing facts sufficient to constitute accident, mistake, or unforeseen cause. Ring v. Ring, 97 R.I. 509 , 199 A.2d 124, 1964 R.I. LEXIS 114 (1964).

— Delay in Mails.

Appellant’s remedy was by petition for new trial where appeal was not completed because required bond failed, by accident, to reach clerk in time. McCotter v. Town Council of New Shoreham, 21 R.I. 425 , 44 A. 473, 1899 R.I. LEXIS 93 (1899).

Where registered letter containing notice of appeal and proper bond was mailed four days before expiration of the statutory period but failed to reach town clerk in time, such failure was “accident, mistake, or unforeseen cause.” McCotter v. Town Council of New Shoreham, 23 R.I. 100 , 49 A. 695, 1901 R.I. LEXIS 108 (1901).

— Mistake of Law.

Defendant was not entitled to a new trial in court of common pleas, where appeal from justice court was denied due to improper signature of appeal bond. Brayton v. Dexter, 16 R.I. 70 , 12 A. 132, 1888 R.I. LEXIS 7 (1888).

New trial would not be granted where claim for jury trial by one of two joint defendants was dismissed because co-defendant was not joined therein, such mistake being one of law. Bassett v. Loewenstein, 23 R.I. 24 , 49 A. 41, 1901 R.I. LEXIS 78 (1901).

Failure to give notice of filing of bill of exceptions because of supposed oral waiver of notice was not such accident, misfortune or mistake as to form basis for relief, since court rule required agreements between parties to be in writing. Dousette v. Pawtucket Gas Co., 29 R.I. 204 , 69 A. 847, 1908 R.I. LEXIS 42 (1908).

Failure to file petition was not due to “accident, mistake or unforeseen cause” where clerk told attorney that if claim of appeal was mailed on last day it would be sufficient, and petition was mailed on last day but was not received until following date. Bolster v. Bolster, 35 R.I. 367 , 87 A. 23, 1913 R.I. LEXIS 42 (1913).

Petition for leave to claim a probate appeal would not be granted on sole ground that petitioner did not know time for appeal was limited to 40 days. Horton v. Rhode Island Hosp. Trust Co., 3 R.I. 59 , 5 3 R.I. 59 , 163 A. 751, 1933 R.I. LEXIS 30 (1933).

Where petitioner failed to file notice of intent to prosecute exceptions because of mistaken belief as to effect of premature judgment, leave to file the notice was granted under this section. Baus v. Coffey, 53 R.I. 227 , 165 A. 593, 1933 R.I. LEXIS 69 (1933).

There is no relief for mistake of law in respect to the time within which a probate appeal may be taken. Jordan v. Rhode Island Hosp. Trust Co., 54 R.I. 352 , 173 A. 353, 1934 R.I. LEXIS 94 (1934).

Will contestant would not be allowed probate appeal under this section for alleged mistake in excluding Brown University Commencement Day in computing time in which to file reasons of appeal since this is a mistake of law. Cook v. Greenlaw, 58 R.I. 402 , 193 A. 494, 1937 R.I. LEXIS 58 (1937).

Where the petitioner’s lawyer relied on information which led him to believe he had done everything necessary to perfect an appeal, it was a mistake of law and not available under this statute. Needle v. Cohen, 61 R.I. 84 , 200 A. 460, 1938 R.I. LEXIS 44 (1938).

Mistake as to the last day for filing an appeal is a mistake of law and furnishes no basis for relief under this section, even where aggrieved person was misled by adverse party, where adverse party advised aggrieved person to obtain professional assistance. Fenner v. Morgan, 76 R.I. 101 , 68 A.2d 83, 1949 R.I. LEXIS 95 (1949).

A litigant who has lost his right of appeal through a mistake of law, especially when it concerns jurisdictional law, is not entitled to relief under this section without some compelling reason. Riverhouse Publishing Co. v. Providence Journal Co., 104 R.I. 192 , 243 A.2d 90, 1968 R.I. LEXIS 634 (1968).

— Mistake of Trial Court or Clerk.

Where party failed to file bill of exceptions due to failure of trial court to set date for filing of bill, party was entitled to leave to file bill out of time. Baker v. Tyler, 28 R.I. 152 , 66 A. 65, 1907 R.I. LEXIS 13 (1907).

Where superior court retained appellant’s bill of exceptions without approval for more than 20 days but appellant did not make application to supreme court within 30 days, appellant was not entitled to permission under this section to thereafter file bill of exceptions as the omission to apply to the court within the time specified was not occasioned by accident, mistake, or unforeseen cause. Hartley v. Rhode Island Co., 28 R.I. 244 , 66 A. 576, 1907 R.I. LEXIS 31 (1907).

Where, due to mistake of trial justice, notice of decision in divorce proceeding was not given to new counsel of defendant, defendant was entitled to leave to file late bill of exceptions. David v. David, 47 R.I. 139 , 131 A. 551, 1926 R.I. LEXIS 23 (1926).

— Negligence of Counsel.

Petitioner was not entitled to a new trial on the ground of “accident, mistake or unforeseen cause” where through negligence he failed to file petition for new trial within statutory time after filing of statement of evidence. Dillon v. O'Neal, 26 R.I. 87 , 58 A. 455, 1904 R.I. LEXIS 28 (1904).

This section does not cover the failure of attorney to file petition for a new trial due to mistake in placing wrong filing date on a memorandum. Haggelund v. Oakdale Mfg. Co., 26 R.I. 520 , 60 A. 106, 1904 R.I. LEXIS 122 (1904).

Omission of attorney to request necessary extension of time for filing of transcript in belief that stenographer would request extension was not such accident, mistake or unforeseen cause as to justify relief under this section. Jackvony v. Colaluca, 29 R.I. 441 , 72 A. 289, 1909 R.I. LEXIS 35 (1909).

Where tortfeasors had lost a case before the district court and instructed defense counsel to file the matter in the superior court, defense counsel’s failure to follow the clients’ instructions until two days after the appellate deadline did not qualify as an accident, mistake, unforeseen cause, or excusable neglect allowing an appeal to be taken out of time under R.I. Gen. Laws § 9-21-6 . Carlson v. Bedford, 828 A.2d 516, 2003 R.I. LEXIS 121 (2003).

Aggrieved Persons.

Neither heir nor executor succeeded to right of aggrieved person to obtain relief under this section where evidence did not show either that aggrieved person was unaware of his rights or that he intended to assert his right. King v. King, 35 R.I. 375 , 87 A. 180, 1913 R.I. LEXIS 50 (1913).

Heir who was of unsound mind during 40-day period following allowance of claim of personal representative against estate was entitled to relief under this section. Kenyon v. Hayhurst, 35 R.I. 380 , 87 A. 168, 1913 R.I. LEXIS 46 (1913).

Cestui que trust who was not a party or privy in equity suit affecting such estate, so that he was not bound by final decree, had no appealable interest entitling him to relief under this section. Primitive Methodist Church v. Homer, 38 R.I. 530 , 96 A. 818, 1916 R.I. LEXIS 12 (1916).

Hearsay evidence may be received to show petitioner’s standing under this section in some cases where other evidence is not available. Kassar v. Ambaragocy, 69 R.I. 414 , 34 A.2d 722, 1943 R.I. LEXIS 69 (1943).

Petitioner under this section need not “clearly establish” that she is a person aggrieved by the decree. Kassar v. Ambaragocy, 69 R.I. 414 , 34 A.2d 722, 1943 R.I. LEXIS 69 (1943).

Consul general could authorize attorney to represent foreign citizen in petition under this section where war made direct contact impossible. Kassar v. Ambaragocy, 69 R.I. 414 , 34 A.2d 722, 1943 R.I. LEXIS 69 (1943).

Certiorari.

Certiorari would not lie as substitute for an appeal lost after one year from entry of final decree. Cohen v. Superior Court, 39 R.I. 272 , 97 A. 794, 1916 R.I. LEXIS 31 (1916).

Collateral Attack.

Where, after decree of unfaithful administration, executor discovered new evidence, his remedy was under this section and the new evidence could not be set up by way of defense to an action on the bond. Probate Court v. Fitz-Simon, 29 R.I. 358 , 71 A. 641, 1908 R.I. LEXIS 66 (1908).

Criminal Cases.

This section applies to criminal proceedings. State v. Lynch, 28 R.I. 463 , 68 A. 315, 1907 R.I. LEXIS 77 (1907).

Divorce Proceedings.

Respondent in uncontested divorce proceeding could not have relief under this section, because there is no appeal from a decision in a divorce case, motion for new trial is not proper except for newly discovered evidence, and respondent took no exceptions. Scolardi v. Scolardi, 42 R.I. 456 , 108 A. 651, 1920 R.I. LEXIS 9 (1920).

Effect of Appeal.

When the plaintiffs duly claim and prosecute their appeal to the Supreme Court, they have had all the benefit they are entitled to under this statute and therefore cannot move for a new trial because of alleged discovery of new evidence. Michon v. Williams, 97 R.I. 74 , 195 A.2d 751, 1963 R.I. LEXIS 129 (1963).

Equity Causes.

This section does not authorize the filing of a motion for new trial in an equity cause. Calcagni v. Cirino, 62 R.I. 49 , 2 A.2d 891, 1938 R.I. LEXIS 8 (1938).

Co-executor was not entitled to relief under the statute for failing to meet a statutorily-mandated deadline for filing a transcript in a probate appeal because the co-executor failed to articulate on appeal any specific grounds on which relief would be justified. Kelley v. Jepson, 811 A.2d 119, 2002 R.I. LEXIS 227 (2002).

— Probate Appeals.

A widow and daughter who resided in a foreign country, did not learn of death of testator until a much later date, and were delayed by matters beyond their control in coming to this country, were permitted under this section to take an appeal from a decree admitting a will to probate. Pino v. Habisch, 45 R.I. 46 , 119 A. 657, 1923 R.I. LEXIS 12 (1923).

Aged uneducated nonresident petitioner who had been named as legatee in previous will and who depended on other parties for information as to estate but who learned of new will only after decree admitting to probate was, under all the circumstances, entitled to leave to file late appeal. Di Benedetto v. Capone, 48 R.I. 14 , 135 A. 156, 1926 R.I. LEXIS 5 (1926).

Petitioner under this section was denied leave to appeal after statutory period where he had for some time known of testator’s death and should have been aware of the probate proceedings. Jordan v. Rhode Island Hosp. Trust Co., 54 R.I. 352 , 173 A. 353, 1934 R.I. LEXIS 94 (1934).

Leave to file a late appeal will not be granted when the petitioner knew of the proceedings but formed no intention to appeal within the statutory period. Wheeler v. Cole, 62 R.I. 107 , 3 A.2d 244, 1938 R.I. LEXIS 13 (1938).

Nonresident will contestant was granted leave to appeal from probate of will where she had no notice of testator’s death before time limit, where affidavits showed possibility of proving unsound mind and undue influence. Tatro v. Dooley, 63 R.I. 436 , 9 A.2d 1, 1939 R.I. LEXIS 100 (1939).

Nonresident who failed to appear in probate proceeding because he did not hear of it until after the decree was entitled to claim late probate appeal. Podrat v. Frank, 76 R.I. 19 , 68 A.2d 29, 1949 R.I. LEXIS 83 (1949).

This section has no application when a heir did not disclose that there might have been other heirs to estate. Davtian v. Barsamian, 106 R.I. 185 , 256 A.2d 510, 1969 R.I. LEXIS 609 (1969).

An estate’s proper remedy where an appeal was not timely filed was to file a petition pursuant to this section, since the probate court lacked the authority to “level the playing field” by extending the time in which the estate could bring its appeal. McBride v. Leach (In re Estate of Speight), 739 A.2d 229, 1999 R.I. LEXIS 185 (1999).

Hearing justice properly found that it was not within the court’s authority to allow additional time to file probate documents. Kelley v. Jepson, 811 A.2d 119, 2002 R.I. LEXIS 227 (2002).

Allowing an appeal to proceed on its merits would be entirely consistent with the spirit which animates the Superior Court Rules of Civil Procedure because a “just” determination of the action could be achieved only by allowing the appeal to be heard on its merits pursuant to the statute. Duffy v. Estate of Scire, 111 A.3d 358, 2015 R.I. LEXIS 41 (2015).

— Worker’s Compensation Proceedings.

Where workmen’s compensation insurer suggested counsel for claimant, claimant’s counsel co-operated with insurer, and language difficulty existed, with result that claimant’s case was not fully presented, order permitting the presentation of additional evidence was granted. Colli v. Crown Piece Dye Works, 55 R.I. 494 , 182 A. 490, 1936 R.I. LEXIS 1 (1936), limited, McLeod v. Fleetwood Motor Sales, 83 R.I. 447 , 118 A.2d 921, 1955 R.I. LEXIS 82 (1955).

Petitioner was not entitled to file a motion for a new trial on the ground of newly discovered evidence in a workmen’s compensation proceeding. Moulis v. Kennedy's, Inc., 82 R.I. 364 , 108 A.2d 512, 1954 R.I. LEXIS 63 (1954).

Newly Discovered Evidence.

Compiler’s Note. This section no longer lists “newly discovered evidence” as justification for failure to claim appeal.

Examination of the affidavits filed in support of the petition for new trial on the ground of new evidence did not convince the court that justice required a revision of the case and the petition was accordingly denied and dismissed. Thrift v. Thrift, 30 R.I. 456 , 76 A. 105, 1910 R.I. LEXIS 39 (1910).

Affidavits of newly discovered evidence could not be considered under this section where petition had not been filed under this section. Labonte v. Alvernaz, 47 R.I. 226 , 132 A. 732, 1926 R.I. LEXIS 44 (1926).

Where there is doubt as to whether new evidence is within the terms of the statute, supreme court should grant the petition so that on the motion for new trial the trial court may consider the significance of the evidence. Kogut v. Bemis, 72 R.I. 430 , 52 A.2d 505, 1947 R.I. LEXIS 23 (1947).

To have granted petitioner a new trial in the superior court on the ground of newly discovered evidence would have been improper and futile, since the superior court had already heard and decided petitioner’s motion for a new trial based upon the same newly discovered evidence. Patriarca v. State, 114 R.I. 94 , 329 A.2d 186, 1974 R.I. LEXIS 1066 (1974).

— Admissibility.

Evidence that would be inadmissible in court cannot be used as the basis for a petition under this section. Langley v. F. W. Woolworth Co., 46 R.I. 394 , 129 A. 1, 1925 R.I. LEXIS 36 (1925).

— Credibility of Witnesses.

Petition for relief under this section was denied where new evidence consisted merely of contradictory statements made by state witness, and did not go to the merits of the case. State v. Lynch, 28 R.I. 463 , 68 A. 315, 1907 R.I. LEXIS 77 (1907).

Defendant was not entitled to a new trial on the ground of newly discovered evidence where affidavits disclosed that new evidence did not go to the merits of the case, but only to credibility of the witnesses. Chapin v. Stone, 32 R.I. 309 , 79 A. 788, 1911 R.I. LEXIS 26 (1911).

Newly discovered evidence might in fact have affected the verdict, but because it was merely impeaching evidence of a witness who testified against defendant, it did not entitle defendant to a new trial. State v. Vendetti, 655 A.2d 686, 1995 R.I. LEXIS 59 (1995).

— Cumulative Evidence.

New trial would not be granted for evidence newly discovered which was merely cumulative unless it was in a manner conclusive upon the point for which it was offered. Potter v. Seth Padelford & Co., 3 R.I. 162 , 1855 R.I. LEXIS 24 (1855).

— Diligence in Discovery.

To obtain a new trial by reason of newly discovered evidence it must be shown that by the exercise of ordinary diligence the evidence could not have been discovered in time to be presented at the trial. Walker v. Ursillo, 166 A. 357, 1933 R.I. LEXIS 161 (1933).

Affidavits for leave to file motion for new trial based on newly discovered evidence must show such evidence was not discoverable by ordinary diligence in time for trial. State v. De Cesare, 64 R.I. 123 , 10 A.2d 724, 1940 R.I. LEXIS 17 (1940).

— Materiality.

Permission to file a motion for a new trial based upon newly discovered evidence would be denied where the introduction of such evidence would not be likely to change the result. Blake v. Rhode Island Hosp. Trust Co., 53 R.I. 87 , 163 A. 750, 1933 R.I. LEXIS 29 (1933).

Newly discovered evidence that witnesses to crime not called on trial had been unable to identify defendant in police lineup was not sufficiently material to justify new trial. State v. De Cesare, 64 R.I. 123 , 10 A.2d 724, 1940 R.I. LEXIS 17 (1940).

Physician’s affidavit based on reexamination and operation after the original trial was not sufficient basis to allow appeal in a workmen’s compensation proceeding based on newly discovered evidence. Moulis v. Kennedy's, Inc., 82 R.I. 364 , 108 A.2d 512, 1954 R.I. LEXIS 63 (1954).

Pleading.

Although this section is a curative statute, one must expressly allege that there was a failure to claim on appeal or that such failure was due to accident, mistake, unforeseen cause, or excusable neglect. Waz v. Estate of Judge, 417 A.2d 326, 1980 R.I. LEXIS 1727 (1980).

Second Petition.

Under R.S. 1857, ch. 193, § 2, supreme court would not entertain a second application for a new trial unless it appeared that the grounds upon which the second application rested were unknown at the time that the former application was submitted. Hayes v. Kenyon, 7 R.I. 531 , 1863 R.I. LEXIS 26 (1863).

Motion in superior court for new trial does not prevent party from later petitioning in supreme court for new trial on basis of evidence discovered after first motion. Hughes v. Rhode Island Co., 27 R.I. 591 , 65 A. 275, 1906 R.I. LEXIS 51 (1906).

Time of Filing Petition.

Petitioner had one year (now 90 days) after entry of decree to petition for will contest under this section, even though legislature had shortened period for rendering final account in administration, but delay beyond reasonable time may be considered in determining if justice requires exercise of discretion in favor of petition. Kassar v. Ambaragocy, 69 R.I. 414 , 34 A.2d 722, 1943 R.I. LEXIS 69 (1943).

— Commencement of Period.

When a judgment has been affirmed after trial of exceptions in the supreme court, the statutory period under this section runs from the date of affirmance rather than from the date of the original judgment. Burrough v. Hill, 15 R.I. 190 , 2 A. 382, 1885 R.I. LEXIS 25 (1885).

Petition for new trial on ground of newly discovered evidence filed more than two years after decision in common pleas division was too late, even though filed within one year of decision of appellate division denying previous petition for new trial. Horton v. Feinberg, 23 R.I. 190 , 49 A. 696, 1901 R.I. LEXIS 109 (1901).

The statutory period is measured from the entry of the decision or decree by which the person is aggrieved. Matteson v. Benjamin F. Smith Co., 30 R.I. 424 , 75 A. 689, 1910 R.I. LEXIS 33 (1910).

Statutory period for petition to file appeal begins to run at the time of the decree, rather than at the expiration of the normal time for appeals. Walquist v. Hodson, 53 R.I. 322 , 166 A. 546, 1933 R.I. LEXIS 91 (1933).

While the statute is remedial and should be liberally construed, it is not available to a petitioner, who, considering the course of his conduct in the light of the knowledge possessed by him, has slept upon his rights. Karolik v. Meyer, 99 R.I. 404 , 208 A.2d 379, 1965 R.I. LEXIS 453 (1965).

— Delay in Proceeding.

Long and unexplained delay should be given considerable weight in deciding whether a petition under this section should be granted. Lincoln v. McCrillis, 58 R.I. 158 , 191 A. 724, 1937 R.I. LEXIS 24 (1937).

Supreme court would not grant appeal under this section where contestant failed to act within general appeal time and where he delayed eight months with knowledge of loss of right of appeal before acting under this section. Lincoln v. McCrillis, 58 R.I. 158 , 191 A. 724, 1937 R.I. LEXIS 24 (1937).

Where a brother and sister were not named in petition or notified of the probate of will until after decree admitting it to probate, four months delay in filing petition for leave to appeal was not unreasonable and their appeal was granted. MacNeil v. Morgan, 73 R.I. 165 , 54 A.2d 409, 1947 R.I. LEXIS 79 (1947).

9-21-7. Repealed.

History of Section. C.P.A. 1905, § 341; G.L. 1909, ch. 289, § 38; G.L. 1923, ch. 339, § 38; G.L. 1938, ch. 535, § 7; G.L. 1956, § 9-21-7 ; Repealed by P.L. 1965, ch. 55, § 35, effective January 10, 1966.

Compiler’s Notes.

Former § 9-21-7 concerned time for execution of final decree.

9-21-8. Interest on judgment for money.

Every judgment for money shall draw interest at the rate of twelve percent (12%) per annum to the time of its discharge.

History of Section. C.P.A. 1905, § 436; G.L. 1909, ch. 294, § 10; G.L. 1923, ch. 344, § 10; G.L. 1938, ch. 484, § 1; G.L. 1956, § 9-21-8 ; P.L. 1965, ch. 55, § 36; P.L. 1981, ch. 54, § 1.

Cross References.

Arbitration award, judgment in, § 10-3-16 .

Arbitration of labor controversy, judgment after, § 28-9-22 .

Rate of interest, § 6-26-1 .

Report of referees, judgment or decree on, § 9-15-6 .

NOTES TO DECISIONS

Appeals From Awards.

A judgment creditor who unsuccessfully appeals the amount of an award is not entitled to postjudgment interest for the period of the unsuccessful appeal. Paola v. Commercial Union Assurance Cos., 490 A.2d 498, 1985 R.I. LEXIS 478 (1985).

Claims Against Estates.

Claims allowed by commissioners on the estate of a deceased insolvent draw interest from the time of their allowance. Mowry v. Peck, 2 R.I. 60 , 1851 R.I. LEXIS 23 (1851).

Where guardians ad litem and attorneys for minor defendant in action brought under former § 9-24-28 (repealed) to construe deed of trust, were awarded fees in connection with such litigation, and trustee appealed from judgment awarding fees, guardians and counsel were entitled to interest on judgment from date of entry to date of discharge, since, although they also appealed, it cannot be contended that they are seeking interest on a judgment which, except for their appeal, might have been discharged earlier. Industrial Nat'l Bank v. Isele, 110 R.I. 157 , 290 A.2d 903, 1972 R.I. LEXIS 893 (1972).

Former executrix is not entitled to interest on her executrix fee in the case of a partition suit, where the decree of partition specifically states, “No interest should be charged on any amount due from either of the parties,” and the Supreme Court, on a prior appeal, agreed with the trial justice’s determinations completely and made no alterations thereto. Dickinson v. Killheffer, 568 A.2d 772, 1990 R.I. LEXIS 11 (1990).

Condemnation.

Between the time a judgment for compensation was rendered in a condemnation proceeding and the time such judgment became final by affirmance by the supreme court or expiration of the time within which an appeal might be taken, the condemnee was entitled to interest only on the portion representing the actual damages sustained by the condemnation and not on the portion representing interest for the time between the taking and the date of judgment, but, between the time the judgment became final and the time it was paid, the condemnee was entitled to interest on the entire judgment, both principal and interest. Atlantic Ref. Co. v. Director of Pub. Works, 104 R.I. 436 , 244 A.2d 853, 1968 R.I. LEXIS 664 (1968).

Interest Unknown at Time of Judgment.

The right to collect post-judgment interest under this section automatically applies to any judgment for damages, even if the actual final amount of the interest cannot be calculated at the time of judgment. Thus, the right to collect post-judgment interest is “included” in judgments for damages. Cardi Corp. v. State, 561 A.2d 384, 1989 R.I. LEXIS 136 (1989).

Judgments Under Public Works Administration Act.

The post-judgment-interest provisions of this section and § 9-21-10 are applicable to judgments entered pursuant to § 37-16-24 of the Public Works Administration Act. Reagan Constr. Corp. v. Mayer, 712 A.2d 372, 1998 R.I. LEXIS 172 (1998).

Worker’s Compensation.

In the absence of other provision in the decree, the amount due under a decree in a workmen’s compensation proceeding draws interest from the date of the decision as finally confirmed by the entry of a decree. Zielonka v. United States Rubber Co., 77 R.I. 167 , 74 A.2d 246, 1950 R.I. LEXIS 56 (1950); Gomes v. John J. Orr & Son, 78 R.I. 96 , 79 A.2d 618, 1951 R.I. LEXIS 41 (1951); Campbell v. Walsh-Kaiser Co., 78 R.I. 290 , 81 A.2d 684, 1951 R.I. LEXIS 73 (1951).

Collateral References.

Court’s power to add interest to verdict returned by jury. 72 A.L.R. 1150.

Date from which interest on judgment starts running, as affected by modification of amount of judgment on appeal. 4 A.L.R.3d 1221.

Impairment of obligation of contract by imposition of interest, or change of interest rate, on judgment. 87 A.L.R. 476.

Interest on judgment awarding interpleaded or impleaded disputed funds. 15 A.L.R.2d 473.

Law of the forum as governing right to and rate of interest on judgments. 78 A.L.R. 1063.

Right to interest on unpaid alimony. 33 A.L.R.2d 1455.

Right to interest, pending appeal, of judgment creditor appealing unsuccessfully on ground of inadequacy. 15 A.L.R.3d 411.

Running of interest on judgment where both parties appeal. 11 A.L.R.4th 1099.

9-21-9. Repealed.

History of Section. C.P.A. 1905, § 437; G.L. 1909, ch. 294, § 11; G.L. 1923, ch. 344, § 1; G.L. 1938, ch. 484, § 2; G.L. 1956, § 9-21-9 ; Repealed by P.L. 1965, ch. 55, § 35, effective January 10, 1966.

Compiler’s Notes.

Former § 9-21-9 concerned interest on verdicts, decisions, awards, and reports.

9-21-10. Interest in civil actions.

  1. In any civil action in which a verdict is rendered or a decision made for pecuniary damages, there shall be added by the clerk of the court to the amount of damages interest at the rate of twelve percent (12%) per annum thereon from the date the cause of action accrued, which shall be included in the judgment entered therein. Post-judgment interest shall be calculated at the rate of twelve percent (12%) per annum and accrue on both the principal amount of the judgment and the prejudgment interest entered therein. This section shall not apply until entry of judgment or to any contractual obligation where interest is already provided.
  2. Subsection (a) shall not apply in any action filed on or after January 1, 1987, for personal injury or wrongful death filed against a licensed physician, hospital, clinic, health maintenance organization, professional service corporation providing health care services, dentist, or dental hygienist based on professional negligence. In all such medical malpractice actions in which a verdict is rendered or a decision made for pecuniary damages, there shall be added by the clerk of the court to the amount of damages interest at the rate of twelve percent (12%) per annum thereon from the date of written notice of the claim by the claimant or his or her representative to the malpractice liability insurer, or to the medical or dental health care provider or the filing of the civil action, whichever first occurs.

History of Section. P.L. 1958, ch. 126, § 1; P.L. 1965, ch. 55, § 36; P.L. 1966, ch. 1, § 10; P.L. 1970, ch. 184, § 1; P.L. 1975, ch. 144, § 1; P.L. 1976, ch. 146, § 1; P.L. 1977, ch. 10, § 1; P.L. 1981, ch. 54, § 1; P.L. 1986, ch. 350, § 8; P.L. 1989, ch. 555, § 2.

Law Reviews.

Caselaw Survey Section: Remedies, see 4 R.W.U.L. Rev. 796 (1999).

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

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

2006 Survey of Rhode Island Law: Case: Insurance Law: Metropolitan Property and Casualty Insurance Company v. Barry, 892 A.2d 915 (R.I. 2006), see 12 Roger Williams U. L. Rev. 618 (2007).

NOTES TO DECISIONS

Constitutionality.

This section, which mandates 12 percent prejudgment interest in medical malpractice cases, is not unconstitutional under the due process clause of U.S. Const. amend. XIV, § 1 or R.I. Const. art. I, § 2 . Oden v. Schwartz, 71 A.3d 438, 2013 R.I. LEXIS 80 (2013).

Applicability.

This statute was intended to apply to any judgment entered upon a decision made or a verdict rendered after its enactment regardless of the date of the commencement of the action. Foster v. Quigley, 94 R.I. 217 , 179 A.2d 494, 1962 R.I. LEXIS 54 (1962).

Trial justice correctly refused to deny plaintiff interest on the judgment in action of trespass on the case for damages for her alleged delay in bringing case to trial, as this section directing the adding of the interest is neither ambiguous nor equivocal; it speaks imperatively and direct, not to the court but to the clerk who is ordered to add on the interest; this is purely a ministerial act and it contemplates no judicial intervention. Kastal v. Hickory House, 95 R.I. 366 , 187 A.2d 262, 1963 R.I. LEXIS 8 (1963).

This section does not apply to judgments in actions for damages for breach of contract. Rhode Island Dairy Queen v. Burke, 101 R.I. 644 , 226 A.2d 420, 1967 R.I. LEXIS 813 (1967).

This section does not unconstitutionally deny due process or equal protection of the laws. Roy v. Star Chopper Co., 584 F.2d 1124, 1978 U.S. App. LEXIS 8647 (1st Cir. 1978), cert. denied, 440 U.S. 916, 99 S. Ct. 1234, 59 L. Ed. 2d 466, 1979 U.S. LEXIS 809 (1979).

This section was not properly applicable to damage to a ship at anchor resulting from the collision of a moving vessel therewith. Frost v. Gallup, 329 F. Supp. 310, 1971 U.S. Dist. LEXIS 12999 (D.R.I. 1971).

It was not the intent of the legislature in enacting this section to add interest to the damage assessment in a condemnation proceeding but to encourage settlements of cases sounding in tort without undue delay and there was no intention to extend the imposition of such interest on awards in actions other than those tortious in character. Isserlis v. Director of Pub. Works, 111 R.I. 164 , 300 A.2d 273, 1973 R.I. LEXIS 1192 (1973).

This statute, allowing the imposition of interest from the commencement of a tort action seeking damages for personal injuries or property damage, does not limit imposition of interest to that class of suit and does not alter the rule that interest in a suit on an insurance policy commences from the time when the loss is made payable by the terms of the policy. Corning Glass Works v. Seaboard Sur. Co., 112 R.I. 241 , 308 A.2d 813, 1973 R.I. LEXIS 977 (1973).

In action by the purchaser of a house against the builder-vendor to recover damages for breach of implied warranty, this section authorizing interest to be added to judgments sounding in tort did not apply. Casavant v. Campopiano, 114 R.I. 24 , 327 A.2d 831, 1974 R.I. LEXIS 1055 (1974).

This section is merely procedural and remedial in nature; thus, as amended in 1977 to permit the addition of interest from the date the cause of action accrued it was applicable to actions filed before but decided after the effective date of the amendment. Holmes v. Bateson, 434 F. Supp. 1365, 1977 U.S. Dist. LEXIS 15105 (D.R.I. 1977), aff'd in part and rev'd in part, 583 F.2d 542, 1978 U.S. App. LEXIS 9572 (1st Cir. 1978), disapproved, Ceres Partners v. GEL Assoc., 918 F.2d 349, 1990 U.S. App. LEXIS 19741 (2d Cir. 1990).

The pre-1975 version of this section was not applicable to actions for alienation of affection or criminal conversation. Bailey v. Huling, 119 R.I. 250 , 377 A.2d 220, 1977 R.I. LEXIS 1905 (1977).

This section does apply to judgments in actions for damages for breach of contract. Aiello Constr. v. Nationwide Tractor Trailer Training & Placement Corp., 122 R.I. 861 , 413 A.2d 85, 1980 R.I. LEXIS 1508 (1980); North Smithfield Teachers Ass'n v. North Smithfield Sch. Comm., 461 A.2d 930, 1983 R.I. LEXIS 973 (1983).

Even though the jury’s award in a wrongful death action was reduced to its present value as of the date of the verdict, trial justice did not err in refusing to delete an amount added pursuant to this section as interest from the time the cause of action first accrued. Pray v. Narragansett Improvement Co., 434 A.2d 923, 1981 R.I. LEXIS 1262 (1981).

Retroactive application of this section, imposing prejudgment interest at rate of 12 percent, does not violate due process rights. Rhode Island Turnpike & Bridge Auth. v. Bethlehem Steel Corp., 446 A.2d 752, 1982 R.I. LEXIS 893 (1982).

Prejudgment interest statute does not apply against the state in action under Tort Claims Act, because such act imposes liability only for damages and prejudgment interest is not an element of damages since it is purely statutory and is peremptorily added to verdict by clerk of court. Andrade v. State, 448 A.2d 1293, 1982 R.I. LEXIS 999 (1982).

Interest on a judgment is determined in accordance with the statute in effect at the time of its rendition rather than at the time the action accrued. Zawatsky v. Cohen, 463 A.2d 210, 1983 R.I. LEXIS 1126 (1983).

Neither the purpose nor the language of this section required its application where a court ordered a surcharge to restore the real value of a trust’s principal — commercial buildings — to its 1950 level. Dennis v. Rhode Island Hospital Trust Nat'l Bank, 744 F.2d 893, 1984 U.S. App. LEXIS 18108 (1st Cir. 1984), disapproved, Salve Regina College v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d 190, 1991 U.S. LEXIS 1714 (1991).

This section does not apply to an award of either punitive or nominal damages. Murphy v. United Steelworkers Local No. 5705, 507 A.2d 1342, 1986 R.I. LEXIS 452 (1986), limited, Pion v. Tague, 677 A.2d 412, 1996 R.I. LEXIS 170 (1996).

This section does not apply to judgments based on the State Tort Claims Act. Mesolella v. Providence, 508 A.2d 661, 1986 R.I. LEXIS 459 (1986).

This section explicitly provides that interest will be calculated only upon “entry” of a judgment, not its mere rendering, nor upon the entry of an order. Cardi Corp. v. State, 561 A.2d 384, 1989 R.I. LEXIS 136 (1989).

The awarding of prejudgment interest is a ministerial act for the clerk of the court, not an issue to be decided by the court. Cardi Corp. v. State, 561 A.2d 384, 1989 R.I. LEXIS 136 (1989).

Former executrix is not entitled to interest on her executrix fee in the case of a partition suit, where the decree of partition specifically states, “No interest should be charged on any amount due from either of the parties,” and the Supreme Court, on a prior appeal, agreed with the trial justice’s determinations completely and made no alterations thereto. Dickinson v. Killheffer, 568 A.2d 772, 1990 R.I. LEXIS 11 (1990).

The court did not add prejudgment interest referable to the amount a contractor previously recovered pursuant to a partial settlement though prejudgment interest was granted with respect to the amount recovered through a proceeding under the Rhode Island Mechanics’ Lien statute, §§ 34-28-1 to 34-28-36 . Commercial Assoc. v. Tilcon Gammino, Inc., 801 F. Supp. 939, 1992 U.S. Dist. LEXIS 14787 (D.R.I. 1992), aff'd, 998 F.2d 1092, 1993 U.S. App. LEXIS 18520 (1st Cir. 1993).

The determination of accidental disability benefits was not an award of damages to which this section applied. Connelly v. Retirement Bd., 633 A.2d 1352, 1993 R.I. LEXIS 202 (1993).

Because this section applies to the rejected-settlement-offer statute, § 27-7-2.2 , insurer was required to pay prejudgment interest over and above its policy limits to pedestrian plaintiff for automobile injuries received from original defendant, New York resident-insured. Armacost v. Amica Mut. Ins. Co., 11 F.3d 267, 1993 U.S. App. LEXIS 32077 (1st Cir. 1993).

Prejudgment interest may be assessed, in an action for strict liability design defect, on future damages, or on damages awarded for pain and suffering. La Plante v. American Honda Motor Co., 27 F.3d 731, 1994 U.S. App. LEXIS 16220 (1st Cir. 1994).

This section does not pertain to nominal damage awards which are compensatory and therefore not “pecuniary” within the meaning of this section. Ondine Shipping Corp. v. Cataldo, 24 F.3d 353, 1994 U.S. App. LEXIS 11950 (1st Cir. 1994).

The prejudgment interest portion of this section does not apply to actions against the state brought pursuant to § 37-13.1-1 , the waiver of immunity statute. Clark-Fitzpatrick, Inc./Franki Found. Co. v. Gill, 652 A.2d 440, 1994 R.I. LEXIS 302 (1994).

When the district court employed the federal statutory rate to calculate the prejudment interest in a claim arising under a federal ERISA claim, instead of the flat rate stipulated in this section, the court did not exceed its discretion in choosing the federal rate; as a general rule, federal law governs the scope of remedies available when a claim arises under a federal statute, and this doctrine extends to the rate of prejudgment interest. Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 1996 U.S. App. LEXIS 29939 (1st Cir. 1996), abrogated, Hardt v. Reliance Std. Life Ins. Co., 560 U.S. 242, 130 S. Ct. 2149, 176 L. Ed. 2d 998, 2010 U.S. LEXIS 4164 (2010).

The post-judgment-interest provisions of this section and § 9-21-8 are applicable to judgments entered pursuant to § 37-16-24 of the Public Works Administration Act. Reagan Constr. Corp. v. Mayer, 712 A.2d 372, 1998 R.I. LEXIS 172 (1998).

Prejudgment interest was properly denied in a probate action as to an amount that a co-executrix was required to reimburse the estate, because the action was one for reimbursement and not a civil action for pecuniary damages. In re Estate of Cantore, 814 A.2d 331, 2003 R.I. LEXIS 21 (2003).

Where the trial court, in the purchasers’ fraud action against the trustees, returned the purchasers’ property purchase deposit, the purchasers were not entitled to judgment interest pursuant to R.I. Gen. Laws § 9-21-10 ; the return of the deposit was a reimbursement rather than an award of pecuniary damages, and the purchasers, therefore, were not entitled to statutory interest. Bogosian v. Bederman, 823 A.2d 1117, 2003 R.I. LEXIS 140 (2003).

Motion justice erred in denying the seller’s motion to alter or amend a judgment in the buyers’ favor to remove prejudgment interest from the award because the return of the buyers’ deposit did not fall within the statutory category of “pecuniary damages.” Andrews v. Plouff, 66 A.3d 840, 2013 R.I. LEXIS 93 (2013).

It was error to award a seaman prejudgment interest under R.I. Gen. Laws § 9-21-10 in a maritime case because this was a substantive issue governed by federal maritime law mandating submission to the jury, requiring the seaman to request a proper instruction, which did not occur. King v. Huntress, Inc., 94 A.3d 467, 2014 R.I. LEXIS 113 (2014).

Actions Against State.

Although plaintiffs in tort actions against the state or municipalities may need special legislative authority to recover interest on their judgments, the plaintiffs in a breach of contract action against a municipality were entitled to recover interest in accordance with this section. Jolicoeur Furniture Co. v. Baldelli, 653 A.2d 740, 1995 R.I. LEXIS 27 , cert. denied, 516 U.S. 964, 116 S. Ct. 417, 133 L. Ed. 2d 335, 1995 U.S. LEXIS 7433 (1995).

This section does not apply to actions against the state brought pursuant to § 37-13.1-1 . Jacor, Inc. v. Cardi Corp., 673 A.2d 1077, 1996 R.I. LEXIS 101 (1996).

This section does not apply to judgments against the state. State Dep't of Transp. v. Providence & Worcester R.R., 674 A.2d 1239, 1996 R.I. LEXIS 135 (1996).

There is no authority, either express or implied, for the addition of prejudgment interest to back pay awarded under R.I. Gen. Laws § 35-5-7 . Therefore, the doctrine of sovereign immunity insulates the State from paying prejudgment interest. R.I. Pub. Telcoms. Auth. v. Russell, 914 A.2d 984, 2007 R.I. LEXIS 17 (2007).

Tort cap of R.I. Gen. Laws § 9-31-2 was inapplicable based on the Veterans Home’s performance of a proprietary function, and therefore prejudgment interest was appropriate; that plaintiff did not request prejudgment interest by motion had no bearing on whether interest was appropriate, and the award was not erroneous. Roach v. State, 157 A.3d 1042, 2017 R.I. LEXIS 45 (2017).

Arbitration Awards.

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

Prejudgment interest may be added to arbitration awards. Altieri v. Liberty Mut. Ins. Co., 697 A.2d 1104, 1997 R.I. LEXIS 238 (1997).

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 (1983).

The confirmation of an arbitration award by the court is a judgment retroactive to the date of the award carrying interest pursuant to this section; the 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).

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).

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 (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 (1986).

Interest should be awarded from the date of the arbitration decision. Rhode Island law does not preclude the award of any post-arbitration award, pre-confirmation judgment interest. Ft. Hill Builders, Inc. v. National Grange Mut. Ins. Co., 866 F.2d 11, 1989 U.S. App. LEXIS 603 (1st Cir. 1989).

Prejudgment interest was properly added to court-annexed arbitration award where losing party failed to offer any substantive evidence that the amount of interest was limited by prior agreement of the parties. Jacksonbay Builders, Inc. v. Azarmi, 869 A.2d 580, 2005 R.I. LEXIS 55 (2005).

Award of Prejudgment Interest.

The trial court did not err in denying the insurance company’s motion to vacate the arbitration award because the insurance policy offered no guidance on how to compute prejudgement interest and none of the Rhode Island Supreme Court’s prior decisions on prejudgment interest addressed the uninsured motorist context. Thus, the arbitrators were free to fashion the remedy they deemed appropriate in the circumstances. Prudential Prop. & Cas. Ins. Co. v. Flynn, 687 A.2d 440, 1996 R.I. LEXIS 294 (1996).

Rhode Island Supreme Court upheld an arbitration panel’s calculation of prejudgment interest on its total award of damages without first having subtracted from the award the amount of a settlement that had been collected by the injured party prior to the arbitration hearing. Prudential Prop. & Cas. Ins. Co. v. Flynn, 687 A.2d 440, 1996 R.I. LEXIS 294 (1996).

In an action against an insurer seeking interest on judgments under a liability policy that applied to the accident, prejudgment interest began to accrue on the date plaintiffs filed their complaint, not the date the insurer tendered its policy limits under the policy. Fratus v. Republic Western Ins. Co., 147 F.3d 25, 1998 U.S. App. LEXIS 13372 (1st Cir. 1998).

The one explicit exception to the general rule of simple interest in state proceedings is for certain eminent domain proceedings, for which compound prejudgment interest is statutorily allowed. Bogosian v. Woloohojian, 158 F.3d 1, 1998 U.S. App. LEXIS 23260 (1st Cir. 1998).

Where the defendant’s breach forced the plaintiff to resort to litigation to enforce his rights under the contract, the damage award as embodied in the judgment was squarely within the plain language of this provision, and the judgment was subject to the addition of prejudgment interest. Skaling v. Aetna Ins. Co., 742 A.2d 282, 1999 R.I. LEXIS 229 (1999).

Twelve percent, not 11 percent, was the proper rate for prejudgment interest, since that was the statutory interest rate at the time the payment of the judgment was was to occur, under R.I. Gen. Laws § 9-21-10 as incorporated by R.I. Gen. Laws § 7-1.1-90 [repealed]. Bogosian v. Woloohojian Realty Corp., 323 F.3d 55, 2003 U.S. App. LEXIS 4935 (1st Cir. 2003).

Prejudgment interest was properly awarded to a driver on a personal injury award against a town police officer even though no prejudgment interest was awarded on an award the driver obtained against the officer’s town employer. The exemption from prejudgment interest that the town enjoyed under the Governmental Tort Liability Act, R.I. Gen. Laws title 9, ch. 31, did not extend to the town’s employees, such as the officer, who was liable in tort. Andrade v. Perry, 863 A.2d 1272, 2004 R.I. LEXIS 183 (2004).

In uninsured/underinsured motorist arbitration cases, prejudgment interest shall accrue on the total damages fixed by the arbitrator(s), computed from the date of injury to the date of any partial payment; at which point the partial payment shall be deducted from the first calculation and prejudgment interest shall accrue on the reduced amount from the date of the partial payment to the date that the judgment is satisfied. In the absence of a contractual provision that precludes or limits prejudgment interest in an arbitration award, it is mandatory that prejudgment interest be added to such awards. Metro. Prop. & Cas. Ins. Co. v. Barry, 892 A.2d 915, 2006 R.I. LEXIS 31 (2006).

In a dispute between a physician and the administratrix of a decedent’s estate over the physician’s payment to the administratrix of the value of real estate owned by a limited liability company (LLC) of which the physician and the administratrix’s decedent were the sole members, it was not error to order the physician to pay prejudgment interest because (1) there was a viable breach of contract claim against the physician, (2) the physician was found to have breached the LLC’s operating agreement, and (3) the operating agreement contemplated such an award, as the operating agreement contained a time frame. Turacova v. DeThomas, 45 A.3d 509, 2012 R.I. LEXIS 79 (2012).

In a contractor’s breach of contract action against a project owner, the court entered judgment in favor of the contractor and awarded the contractor prejudgment interest under R.I. Gen. Laws § 9-21-10 on the compensatory damages award. The court declined to award either party attorney fees and costs under R.I. Gen. Laws § 9-1-45 because neither party was willing to concede that one or more of its significant claims lacked legal and/or evidentiary support, which resulted in considerable motion practice and a lengthy and, no doubt, costly trial. Allstate Interiors & Exteriors, Inc. v. Stonestreet Constr., LLC, 907 F. Supp. 2d 216, 2012 U.S. Dist. LEXIS 155939 (D.R.I. 2012), aff'd, 730 F.3d 67, 2013 U.S. App. LEXIS 19401 (1st Cir. 2013).

Responsibility for a delay in the resolution of a case should not be the controlling factor in deciding whether prejudgment interest is to be computed; thus, the trial court did not err in declining to reduce plaintiff’s award of prejudgment interest based on delay caused by plaintiff’s pursuit of two unsuccessful appeals. Greensleeves, Inc. v. Smiley, 68 A.3d 425, 2013 R.I. LEXIS 94 (2013).

Trial court properly awarded prejudgment interest in a slander of title action from the date when the notices of lis pendens were filed rather than the date used to calculate compensatory damages because a cause of action for slander of title accrued at the moment the notices of lis pendens were filed. Carrozza v. Voccola, 90 A.3d 142, 2014 R.I. LEXIS 67 (2014).

Trial court did not err in awarding prejudgment interest to a seller because the mere fact that a deposit was involved did not preclude the seller from recovering statutory interest; the case did not involve the return of a deposit but the retention of a deposit as a form of damages, which was the seller’s sole remedial measure under the purchase and sales agreement. Danforth v. More, 129 A.3d 63, 2016 R.I. LEXIS 6 (2016).

Because there was a breach of contract claim before the hearing justice, and the purchasers were found to have breached the terms of the purchase and sales agreement, prejudgment interest was appropriately awarded to the seller. Danforth v. More, 129 A.3d 63, 2016 R.I. LEXIS 6 (2016).

Trial court did not err in awarding prejudgment interest to a seller because during the time in which the deposit remained in the escrow agent’s account and the purchasers executed written releases, the seller did not have access to the compensation to which she was entitled. Danforth v. More, 129 A.3d 63, 2016 R.I. LEXIS 6 (2016).

Superior court properly awarded a commercial tenant prejudgment interest for payments it made because the parties’ dispute became a contractual dispute. Roadepot, LLC v. Home Depot, U.S.A., Inc., 163 A.3d 513, 2017 R.I. LEXIS 94 (2017).

Compounding Interest.

Prejudgment interest on the plaintiff ’s loss should have been computed at the rate of 12 percent per annum from the date of the claim until the date of the affirmance and revision of the Superior Court’s judgment on appeal. Thereafter, postjudgment interest would accrue on the revised judgment. To do otherwise, i.e., to allow the plaintiff to collect 12 percent interest on the judgment as of the date it was originally entered, would have improperly countenanced a compounding of interest. Welsh Mfg. v. Pinkerton's, 494 A.2d 897, 1985 R.I. LEXIS 543 (1985).

Although R.I. Gen. Laws § 9-21-10(a) supported an award of interest on the purported assignee’s monetary judgment against the realty corporation for personal injuries the purported assignee sustained when a step on the realty corporation’s property collapsed, the interest award had to be for simple interest. The wording of R.I. Gen. Laws § 9-21-10(a) regarding interest awards did not support the granting of a compound interest award. Imperial Cas. & Indem. Co. v. Bellini, 947 A.2d 886, 2008 R.I. LEXIS 66 (2008).

Conflict of Laws.

A federal court should properly apply a forum state’s pre-judgment interest statute when sitting in a diversity case. Roy v. Star Chopper Co., 584 F.2d 1124, 1978 U.S. App. LEXIS 8647 (1st Cir. 1978), cert. denied, 440 U.S. 916, 99 S. Ct. 1234, 59 L. Ed. 2d 466, 1979 U.S. LEXIS 809 (1979).

It was proper to treat a judgment as affording the plaintiff the option to have it rest on federal or state law since the applicable statutory claims appeared to be wholly symmetrical, thereby allowing the plaintiff the better interest rate provided by this section. Conetta v. Nat'l Hair Care Ctrs., Inc., 236 F.3d 67, 2001 U.S. App. LEXIS 160 (1st Cir. 2001).

R.I. Gen. Laws § 9-21-10 is “procedural” rather than “substantive,” and, therefore, prevails in a district court sitting in diversity in Rhode Island. Rhode Island Charities Trust v. Engelhard Corp., 267 F.3d 3, 2001 U.S. App. LEXIS 21024 (1st Cir. 2001).

Denial of Prejudgment Interest.

The mother and sister of the decedent killed in a motor vehicle accident are not entitled to prejudgment interest, where, although the estate is delayed in the receipt of insurance proceeds, the insurer offers to pay up to the policy limits, and the delay is caused entirely by litigation commenced by the mother. Martin v. Lumberman's Mut. Casualty Co., 559 A.2d 1028, 1989 R.I. LEXIS 115 (1989).

The parties’ specific agreement to deposit a check into an interest bearing account amounted to an exception to this provision, thereby relieving the defendant from prejudgment interest. Cabral v. DuPont, 764 A.2d 114, 2001 R.I. LEXIS 9 (2001).

Where the parties settled the matter after a jury verdict, but before the resolution of an appeal, the settlement with the injured party was reached before the rights of the parties had been finally adjudicated; thus, there was no final judgment capable of triggering the imposition of prejudgment interest. Travelers Prop. & Cas. Corp. v. Old Republic Ins. Co., 847 A.2d 303, 2004 R.I. LEXIS 96 (2004).

Although plaintiff successfully secured a declaration that she was entitled to widow’s pension benefits as the common-law wife of a retired city firefighter, plaintiff was not entitled to prejudgment interest under R.I. Gen. Laws § 9-21-10(a) because the determination of pension benefits, by way of a declaratory judgment, was not an award of damages and, as such, § 9-21-10(a) did not apply. Fravala v. City of Cranston, 996 A.2d 696, 2010 R.I. LEXIS 91 (2010).

In a dispute over a bequest to a former wife in a decedent’s will, the wife was not entitled to prejudgment interest because the case was not a contract or tort claim. Glassie v. Doucette, 159 A.3d 88, 2017 R.I. LEXIS 54 (2017).

Discretion of Court.

Imposition of interest under this section in securities case was within the discretion of the federal district court and was neither unfair nor unjust where defendants had had the benefit of their fraud for over eight years and the interest rate was not unduly high. Holmes v. Bateson, 583 F.2d 542, 1978 U.S. App. LEXIS 9572 (1st Cir. 1978).

This section requires the clerk to include prejudgment interest in every civil judgment as a matter of course. However, it does not abrogate the court’s discretion to determine whether or to what extent a prevailing claimant may be entitled to prejudgment interest. Commercial Assoc. v. Tilcon Gammino, Inc., 801 F. Supp. 939, 1992 U.S. Dist. LEXIS 14787 (D.R.I. 1992), aff'd, 998 F.2d 1092, 1993 U.S. App. LEXIS 18520 (1st Cir. 1993).

In consequence of the unambiguous statutory language of § 28-35-12(c) , a petitioner need not request interest in order to receive it. Donnelly v. Town of Lincoln, 730 A.2d 5, 1999 R.I. LEXIS 110 (1999).

“Judgment” Construed.

The term “judgment” as referred to in this section contemplates a final judgment, one that finally adjudicates the rights of the parties, whether it is a judgment from which no appeal is taken or a judgment that is affirmed by the Supreme Court after consideration and rejection of the appellant’s contentions. Welsh Mfg. v. Pinkerton's, 494 A.2d 897, 1985 R.I. LEXIS 543 (1985); Lombardi v. Goodyear Loan Co., 549 A.2d 1025, 1988 R.I. LEXIS 131 (1988).

The Supreme Court’s affirmation of a partial summary judgment constitutes the requisite final judgment for the purposes of this section. Cardi Corp. v. State, 561 A.2d 384, 1989 R.I. LEXIS 136 (1989).

Where a judgment was appealed, it was not final for assessing postjudgment interest until affirmed and where the appellant, an insurer’s fund, was barred from recovering prejudgment interest, discovery sanctions relating to the interest were properly denied. R.I. Insurers' Insolvency Fund v. Leviton Mfg. Co., 813 A.2d 47, 2003 R.I. LEXIS 4 (2003).

Jury.

Advising a jury of the fact of interest and of how and in what amount it is computed is reversible error. Di Meo v. Philbin, 502 A.2d 825, 1986 R.I. LEXIS 390 (1986).

Legislative Intent.

In light of the litigated history of this section, the legislature intended to equalize the right of tort and contract litigants to collect interest on judgments. Gott v. Norberg, 417 A.2d 1352, 1980 R.I. LEXIS 1669 (1980).

The legislature did not intend to provide for interest on tax refunds awarded upon review of administrative proceedings when it amended this section in 1976. Gott v. Norberg, 417 A.2d 1352, 1980 R.I. LEXIS 1669 (1980).

The Legislature’s primary intention was not to add interest but to establish a device to encourage settlements of cases sounding in tort without undue delay. Di Meo v. Philbin, 502 A.2d 825, 1986 R.I. LEXIS 390 (1986).

The findings of the legislature in the preamble to the 1986 amendment to this provision, which related to the stability of the Medical Malpractice Joint Underwriting Association, are entitled to deference from the courts. Flanagan v. Wesselhoeft, 765 A.2d 1203, 2001 R.I. LEXIS 37 (2001).

Nature of Interest.

Interest on a judgment in an action of trespass or trespass on the case for damages to person or property is not of the substance of the right of action but exclusively an incident attached thereto by legislative fiat after such right has been adjudicated. Foster v. Quigley, 94 R.I. 217 , 179 A.2d 494, 1962 R.I. LEXIS 54 (1962).

The interest provided by this section does not increase the amount in controversy so as to confer federal jurisdiction upon an action for $10,000 damages for personal injuries. Rajotte v. Home Indem. Co., 258 F. Supp. 780, 1966 U.S. Dist. LEXIS 6753 (D.R.I. 1966).

The interest provided for in this section is not to be equated with costs and a plaintiff who recovered damages of less than one thousand dollars in the superior court was entitled to interest thereon notwithstanding the fact he was barred from recovering costs by § 8-2-14 . Perri v. Wood, 103 R.I. 53 , 234 A.2d 663, 1967 R.I. LEXIS 575 (1967).

An insurer of judgment defendants against the liability for which the judgments were entered was not liable for prejudgment interest in excess of the limits of its policy, such interest being part of the damages and not “expenses” or costs. Factory Mut. Liab. Ins. Co. v. Cooper, 106 R.I. 632 , 262 A.2d 370, 1970 R.I. LEXIS 966 (1970).

Partial Settlement.

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 (1998).

Postjudgment Interest.

On public policy grounds, a party who has received a truly unconditional offer of payment may not continue to accrue statutory interest during his unsuccessful appeal. Catanzaro v. Central Congregational Church, 723 A.2d 774, 1999 R.I. LEXIS 46 (1999).

Where defendant’s offer of payment was conditional on plaintiffs not bringing an appeal, plaintiffs were entitled to receive interest accruing until the date of final judgment. Catanzaro v. Central Congregational Church, 723 A.2d 774, 1999 R.I. LEXIS 46 (1999).

Trial justice did not err in failing to award the injured party post-judgment interest while the premises liability lawsuit appeal was pending. Kurczy v. St. Joseph Veterans Ass'n, 820 A.2d 929, 2003 R.I. LEXIS 96 (2003).

Property Settlements.

A property settlement agreement that was independent of the divorce judgment was subject to basic contract principles, including the accrual of interest. Donelan v. Donelan, 741 A.2d 268, 1999 R.I. LEXIS 219 (1999).

Punitive Damages.

This section does not apply to prejudgment interest on a punitive damage award. De Leo v. Anthony A. Nunes, Inc., 546 A.2d 1344, 1988 R.I. LEXIS 122 (1988), cert. denied, 489 U.S. 1074, 109 S. Ct. 1522, 103 L. Ed. 2d 828, 1989 U.S. LEXIS 1534 (1989).

Remittitur.

The court has the authority when deciding a motion for a new trial and ordering a remittitur in lieu of a new trial, to fix the amount of the total judgment, including interest. Bader v. Alpine Ski Shop, 505 A.2d 1162, 1986 R.I. LEXIS 437 (1986).

Scope of Section.

This section was enacted to promote the expeditious settlement of claims. Roy v. Star Chopper Co., 584 F.2d 1124, 1978 U.S. App. LEXIS 8647 (1st Cir. 1978), cert. denied, 440 U.S. 916, 99 S. Ct. 1234, 59 L. Ed. 2d 466, 1979 U.S. LEXIS 809 (1979).

The amendments to this section in 1965 and 1966 were intended to bring its language in conformity with the rules of civil procedure which had eliminated the old forms of action and the amendment of 1970 changed the interest rate from six per cent to eight per cent but none of these amendments broadened the scope of this section. Isserlis v. Director of Pub. Works, 111 R.I. 164 , 300 A.2d 273, 1973 R.I. LEXIS 1192 (1973).

One of the purposes of this section is to promote the early settlement of claims. Pray v. Narragansett Improvement Co., 434 A.2d 923, 1981 R.I. LEXIS 1262 (1981).

Shareholder Actions.

Because an award of compound interest in election-to-purchase corporate stock proceedings is not authorized by § 7-1.1-90.1 [repealed], the applicable rate of interest is to be calculated according to the provisions of this section. DiLuglio v. Providence Auto Body, Inc., 755 A.2d 757, 2000 R.I. LEXIS 159 (2000).

Time Interest Begins.

The language of this statute clearly indicates that the legislature was concerned solely with the time when the damages were ascertained by decision or verdict and not at all with reference to the commencement of the action of trespass and trespass on the case for damages to the person or to real or personal estate. Foster v. Quigley, 94 R.I. 217 , 179 A.2d 494, 1962 R.I. LEXIS 54 (1962).

Where verdict in favor of plaintiff was rendered after statute was amended to provide for prejudgment interest at an increased note per annum, prejudgment interest was properly based upon the increased rate and computed from date of filing of complaint until date of rendition of verdict as an incident attached to the judgment or verdict after such right had been adjudicated. Oresman v. G. D. Searle & Co., 388 F. Supp. 1175, 1975 U.S. Dist. LEXIS 14330 (D.R.I. 1975).

It was not error to refuse to impose interest under this section when it was impossible to ascertain when the various components of the award were due and payable. Grady v. Grady, 504 A.2d 444, 1986 R.I. LEXIS 392 (1986).

Prejudgment interest on a contractor’s judgment against the state began to accrue on the date when the general assembly first waived sovereign immunity to allow the contractor to sue. Cardi Corp. v. State, 561 A.2d 384, 1989 R.I. LEXIS 136 (1989).

Prejudgment interest begins to run, in a products liability action against a drug manufacturer, when the action accrues for purposes of the statute of limitations, i.e., § 9-1-14 , rather than from the date of injury. Castrignano v. E.R. Squibb & Sons, Inc., 900 F.2d 455, 1990 U.S. App. LEXIS 5115 (1st Cir. 1990).

Because the plaintiff’s lost profits did not start to accrue until the beginning of fiscal year 1982, even though the breach of the lease agreement occurred on April 30, 1980, prejudgment interest should be added to the award from the beginning of fiscal year 1981 and not earlier. Blue Ribbon Beef Co. v. Napolitano, 696 A.2d 1225, 1997 R.I. LEXIS 216 (1997).

Court correctly excluded an arbitrator’s interest award from the principal on which interest was assessed during the period between an arbitration award and award confirmation as postjudgment interest cannot accrue until a final judgment is entered. Bradford Dyeing Ass'n v. J. Stog Tec GMBH, 809 A.2d 468, 2002 R.I. LEXIS 191 (2002).

Former employee’s motion to amend the judgment on his breach of contract action against several plastics companies to include prejudgment interest was granted where a “date of damages” approach was impractical because it was impossible to discern from the jury’s verdict the precise moment the employee was originally entitled to the damages, the employee’s filing of his lawsuit provided a clear date of demand for performance, such a date reflected the jury’s finding that the employee was entitled to the funds represented in a transition agreement at the time he filed the suit, and as a result, the prejudgment interest provided by R.I. Gen. Laws § 9-21-10 began to accrue on the date of the employee’s filing of the lawsuit. Buckley v. Brown Plastics Mach., LLC, 368 F. Supp. 2d 167, 2005 U.S. Dist. LEXIS 8478 (D.R.I. 2005).

Former employee was successful upon his claims of fraud and breach of contract against his former employer and was entitled to prejudgment interest pursuant to R.I. Gen. Laws § 9-21-10 from the date that he became entitled to a bonus and commissions promised by the employer but did not receive them. Gupta v. Customerlinx Corp., 385 F. Supp. 2d 157, 2005 U.S. Dist. LEXIS 18782 (D.R.I. 2005).

When a sewage commission was found liable for damaging a tenant’s building, the accrual date for prejudgment interest was properly calculated; it was reasonable to set that date at the time the tenant’s business was completely destroyed when the tenant was forced to cease its operations. Free & Clear Co. v. Narragansett Bay Comm'n, 131 A.3d 1102, 2016 R.I. LEXIS 21 (2016).

Trial justice did not err in determining the date when prejudgment interest was to begin to run following the breach of a stock warrant; after receiving the audited financial statements, plaintiff had 75 days to decide whether to buy shares or put the warrant and then 120 days to deliver the payment, and the trial justice concluded that the last day to deliver payment was the date the cause of action accrued for purposes of prejudgment interest. Mgmt. Capital, L.L.C. v. F.A.F., Inc., 209 A.3d 1162, 2019 R.I. LEXIS 92 (2019).

Workers’ Compensation Awards.

Section 28-35-12(c) makes an award of interest pursuant to this section applicable to judgments of the workers’ compensation court when awarding retroactive payment of weekly benefits, but alters the time frame for which interest may be awarded and provides for circumstances in which an award of interest may be reduced or altogether eliminated. Donnelly v. Town of Lincoln, 730 A.2d 5, 1999 R.I. LEXIS 110 (1999).

Collateral References.

Right to prejudgment interest on punitive or multiple damages awards. 9 A.L.R.5th 63.

9-21-10.1. Repealed.

History of Section. P.L. 1987, ch. 522, § 2; P.L. 1988, ch. 129, art. 21, § 2; Repealed by P.L. 1989, ch. 555, §§ 1, 6, effective July 12, 1989.

Compiler’s Notes.

Former § 9-21-10.1 concerned interest in civil actions arising on or after July 1, 1987.

9-21-11. Restraining orders — Notification of local authorities.

The clerk of the superior court of each county may, if requested by the prevailing party’s attorney, immediately forward a certified copy of any restraining order issued by a justice of the superior court to the police department of the municipality in which the prevailing party is domiciled whenever the order enjoins one party from interfering with the person of another.

History of Section. P.L. 1982, ch. 401, § 2; P.L. 1997, ch. 308, § 1.

9-21-12. Mandatory conference to consider periodic payments of judgment.

In any action to recover damages for personal injury, injury to property, or wrongful death for which a judgment of one hundred fifty thousand ($150,000) dollars or more is entered, a post-judgment conference shall be held after the court has decided any motion for new trial, whether the motion is for retrial on liability and damages or for additur or remittitur, at which the trial judge, plaintiff(s)’s counsel, and defendant(s)’s counsel shall be present. The conference will be for the purpose of determining the viability of a voluntary agreement for payment of the judgment in periodic installments.

History of Section. P.L. 1986, ch. 350, § 9; P.L. 1987, ch. 522, § 6.

9-21-13. Periodic payment of tort judgments.

In any legal action based upon a cause of action arising for personal injury, property damage, or wrongful death in which damages, if liability is proved, are likely to be in excess of one hundred fifty thousand dollars ($150,000), the parties shall consider the use of periodic payments as means of settlement.

History of Section. P.L. 1987, ch. 522, § 1.

Chapter 22 Costs

9-22-1. Court order requiring nonresident plaintiff to give surety for costs.

The court before which any civil action, whether by appeal or otherwise, is pending may, at any time before final judgment or decree therein, upon motion of any defendant and for cause shown, require a plaintiff who is not an inhabitant of this state to give some sufficient person residing within this state or some surety company authorized to do business therein as surety for costs, which may be done by the surety endorsing his or her name on the complaint with the words “surety for costs,” or by giving bond therefor; and when surety has once been given, may for cause shown, require the plaintiff to give another surety for costs.

History of Section. C.P.A. 1905, § 442; G.L. 1909, ch. 295, § 2; G.L. 1923, ch. 345, § 2; G.L. 1938, ch. 536, § 2; G.L. 1956, § 9-22-1 ; P.L. 1965, ch. 55, § 37.

Comparative Legislation.

Costs generally:

Conn. Gen. Stat. § 52-240 et seq.

Mass. Ann. Laws ch. 261, § 1 et seq.

NOTES TO DECISIONS

Assumpsit for Costs.

Assumpsit would lie to recover costs from the surety, since the basis of liability is the surety’s undertaking rather than the judgment against the plaintiff. Carroll v. Williams, 18 R.I. 450 , 28 A. 902, 1894 R.I. LEXIS 18 (1894).

Collateral References.

Nonresident’s duty to furnish security for costs as affected by joinder or addition of resident. 158 A.L.R. 737.

Waiver of statute or court rule requiring nonresident plaintiff to give security for costs. 8 A.L.R. 1510.

9-22-2. Repealed.

History of Section. C.P.A. 1905, § 443; G.L. 1909, ch. 295, § 3; G.L. 1923, ch. 345, § 3; G.L. 1938, ch. 536, § 3; G.L. 1956, § 9-22-2 ; Repealed by P.L. 1965, ch. 55, § 39, effective January 10, 1966.

Compiler’s Notes.

Former § 9-22-2 concerned court order requiring plaintiff to give surety.

9-22-3. Dismissal for failure to give surety.

Upon the neglect of the plaintiff to comply with an order of the court requiring a surety or another surety, as provided in § 9-22-1 , his or her action or suit may be dismissed with costs for the defendant.

History of Section. C.P.A. 1905, § 444; G.L. 1909, ch. 295, § 4; G.L. 1923, ch. 345, § 4; G.L. 1938, ch. 536, § 4; G.L. 1956, § 9-22-3 ; P.L. 1997, ch. 326, § 22.

NOTES TO DECISIONS

Constitutionality.

This section is not in violation of R.I. Const., Art. I, § 5 , since giving security for costs cannot be said to be a purchasing of justice. Conley v. Woonsocket Inst. for Sav., 11 R.I. 147 , 1875 R.I. LEXIS 13 (1875).

Dismissal under this section in a case where the plaintiff is too poor to give surety would violate R.I. Const., Art. I, § 5 . Spalding v. Bainbridge, 12 R.I. 244 , 1879 R.I. LEXIS 2 (1879); Lewis v. Smith, 21 R.I. 324 , 43 A. 542, 1899 R.I. LEXIS 60 (1899).

Court Discretion.

The statute was not mandatory when applied to a resident suitor, and the court could extend time for giving surety for costs. Rosenfeld v. Swarts, 22 R.I. 315 , 47 A. 690, 1900 R.I. LEXIS 109 (1900).

Extension of Time.

Acceptance of surety for costs offered by resident plaintiff after time first set by court and after defendant had moved for dismissal was proper as amounting to an extension of time. Rosenfeld v. Swarts, 22 R.I. 315 , 47 A. 690, 1900 R.I. LEXIS 109 (1900).

Final Decision.

Dismissal under this section is a final decision in the action, in the absence of a bill of exceptions or petition for new trial. Lewis v. Smith, 21 R.I. 324 , 43 A. 542, 1899 R.I. LEXIS 60 (1899).

Resident Plaintiffs.

This section applies to resident plaintiffs as well as to nonresidents. Conley v. Woonsocket Inst. for Sav., 11 R.I. 147 , 1875 R.I. LEXIS 13 (1875).

Statute of Limitations.

A dismissal under this section in a case where the plaintiff could not give surety because of poverty is an abatement of such a nature as to permit plaintiff to bring another action in the time allowed by § 9-1-22 after the statute of limitations has expired. Robinson v. Merchants' & Miners' Transp. Co., 16 R.I. 637 , 19 A. 113, 1889 R.I. LEXIS 80 (1889).

If a plaintiff having been ordered to furnish surety fails to do so, either from choice or from wilful neglect to use proper effort, his failure is to be deemed a voluntary default and after dismissal § 9-1-22 will not apply. Robinson v. Merchants' & Miners' Transp. Co., 16 R.I. 637 , 19 A. 113, 1889 R.I. LEXIS 80 (1889).

9-22-4. Liability of surety.

Every surety shall be liable, in case the plaintiff shall not make good his or her case, to pay all costs that shall be awarded against the plaintiff; provided, that proceedings are brought therefor within one year after final decree or judgment in the suit or action.

History of Section. C.P.A. 1905, § 445; G.L. 1909, ch. 295, § 5; G.L. 1923, ch. 345, § 5; G.L. 1938, ch. 536, § 5; G.L. 1956, § 9-22-4 .

NOTES TO DECISIONS

Assumpsit.

The liability of the defendant surety is by virtue of his undertaking, and not by virtue of the statute, so assumpsit will lie against him. Carroll v. Williams, 18 R.I. 450 , 28 A. 902, 1894 R.I. LEXIS 18 (1894).

9-22-5. Recovery of costs by prevailing party.

In civil actions at law, the party prevailing shall recover costs, except where otherwise specially provided, or as justice may require, in the discretion of the court.

History of Section. C.P.A. 1905, § 441; G.L. 1909, ch. 295, § 1; G.L. 1923, ch. 345, § 1; G.L. 1938, ch. 536, § 1; G.L. 1956, § 9-22-5 .

Rules of Court.

Costs allowed to prevailing party, see Super. Ct. R. Civ. P. Rule 54(d).

Costs to prevailing party in district court, see Dist. Ct. R. Civ. P. Rule 54(c).

Cross References.

Attorney fees in actions against unauthorized insurers, § 27-16-13 .

School officer acting in good faith, costs not assessed against, § 16-39-7 .

NOTES TO DECISIONS

Costs Exceeding Levy.

Under circumstances where property levied upon sold for only $1.00 but the sheriff’s return showed his authorized costs to be $32.66, the district court was justified in exercising discretion adversely to petitioner’s claim of the costs in question as it would seem unjust to allow as costs expenses incurred in what from the results must have inevitably alerted petitioner to be an unprofitable levy. C. W. Stuart & Co. v. Sixth Dist. Court, 93 R.I. 478 , 176 A.2d 729, 1962 R.I. LEXIS 8 (1962).

Counsel Fees.

The word “costs” does not include counsel fees. Di Iorio v. Cantone, 49 R.I. 452 , 144 A. 148, 1929 R.I. LEXIS 87 (1929).

Denial of Costs to Officer.

Where attaching officer improperly refused bond tendered to regain possession of attached property, trial court was justified in limiting officer’s costs to one day’s storage. Superior Glass Co. v. District Court of Sixth Judicial Dist., 48 R.I. 4 , 135 A. 50, 1926 R.I. LEXIS 2 (1926).

Eminent Domain.

Plaintiff who lost in action against city for damages for taking of land was required under P.S. 1882, ch. 217, § 1, to pay costs. Aldrich v. Providence, 15 R.I. 613 , 10 A. 592, 1887 R.I. LEXIS 44 (1887).

Expert Witnesses.

Costs are normally considered the expenses of suing another party, including filing fees and fees to serve process. Fees to pay expert witnesses would not be included in this definition of costs. Moreover, where the trial justice never directly ruled on the plaintiffs’ motion for award of costs, it could be inferred that the justice did not intend to exercise the discretion granted to her by this section and have her award of costs include fees for expert witnesses. Kottis v. Cerilli, 612 A.2d 661, 1992 R.I. LEXIS 172 (1992).

Illustrative Cases.

Trial court did not abuse its discretion in ordering both the State and defendants to pay their own costs, as it found that 1) the State’s claim was not frivolous or made in bad faith; 2) the public had a heightened interest because of the physical and environmental problems at issue; 3) assigning all costs to the State could act could deter future environmental suits; and 4) both the public and defendants substantially benefited from the litigation. State v. Lead Indus. Ass'n, 69 A.3d 1304, 2013 R.I. LEXIS 72 (2013).

City was properly summarily awarded costs in an association’s suit against the city because (1) the city prevailed, and (2) the association had a full and fair opportunity to present the association’s arguments. Cranston Police Retirees Action Comm. v. City of Cranston, 208 A.3d 557, 2019 R.I. LEXIS 80 , cert. denied, 140 S. Ct. 652, 205 L. Ed. 2d 386, 2019 U.S. LEXIS 7455 (2019).

Mandamus.

A superior court mandamus proceeding is a civil action in which costs may be allowed. Hartman v. Carter, 121 R.I. 1 , 393 A.2d 1102, 1978 R.I. LEXIS 746 (1978).

Personal Representatives.

If an administrator brings an action in his representative capacity but fails to maintain the action, judgment for costs should be rendered against him personally. Lynch v. Webster, 17 R.I. 513 , 23 A. 27, 1891 R.I. LEXIS 63 (1891).

Probate Appeals.

Executors who obtained probate of will on appeal from decree denying probate were entitled to costs. Wheeler v. Wheeler, 2 R.I. 1 , 1851 R.I. LEXIS 15 (1851).

Supreme Court Appeals.

Defendants gained no benefit from this section because they were seeking to recover costs incurred in prosecuting their appeal to the state supreme court, and the general assembly has “otherwise specially provided” for the recovery of appellate costs. Lee v. Nielsen, 426 A.2d 257, 1981 R.I. LEXIS 1044 (1981).

Collateral References.

Accommodation party’s right to recover costs as against accommodated party after payment of paper. 36 A.L.R. 596; 77 A.L.R. 668.

Declaratory judgment, costs in proceedings to obtain. 87 A.L.R. 1249.

Divorce suit, effect of death of party to, before final decree, on liability for costs. 104 A.L.R. 667; 158 A.L.R. 1205.

Guardian ad litem appointed for infant defendant, against whom fees are taxable as costs. 30 A.L.R.2d 1148.

Interlocutory order of one judge allowing or disallowing costs as binding on another judge in the same case. 132 A.L.R. 78.

Joint tort-feasor’s liability for costs as affected by satisfaction of judgment by other tort-feasor. 27 A.L.R. 819; 65 A.L.R. 1087; 166 A.L.R. 1099.

Legacy charged upon land, costs of suit to enforce payment of. 116 A.L.R. 61; 134 A.L.R. 361.

Liability of state, or its agency or board, for costs in civil action to which it is a party. 72 A.L.R.2d 1379.

Recovery of attorneys’ fees and costs of litigation incurred as result of breach of agreement not to sue. 9 A.L.R.5th 933.

Recovery of Computer-Assisted Research Costs as Part of or in Addition to Attorney’s Fees Under State Law. 33 A.L.R.6th 305.

Subrogation to mortgage lien, right of one entitled to, to recover costs and fees. 107 A.L.R. 792.

Trust, litigation by beneficiary respecting, allowance of costs of. 9 A.L.R.2d 1132.

9-22-6. Apportionment of costs in action for partition.

In all actions of partition, the court before which the action may be pending may adjudge and determine, as to it shall appear equitable and just, relative to the apportionment of costs among the parties, plaintiff and defendant, by dividing the costs equally or subjecting either party to the payment of the whole or any part thereof.

History of Section. C.P.A. 1905, § 446; G.L. 1909, ch. 295, § 6; G.L. 1923, ch. 345, § 6; G.L. 1938, ch. 536, § 6; G.L. 1956, § 9-22-6 .

NOTES TO DECISIONS

Apportionment.

Trial justice in proceeding between owner of three-fourths interest and owner of one-fourth interest did not abuse his discretion when he assessed the costs equally between the two parties where the evidence showed that major owner had managed the properties for many years without charge. Barney v. Barney, 83 R.I. 182 , 114 A.2d 399, 1955 R.I. LEXIS 35 (1955).

Indemnity.

Party who voluntarily paid entire costs cannot later recover proportionate parts of costs from other parties. Whipple v. Wales, 47 R.I. 487 , 134 A. 22, 1926 R.I. LEXIS 89 (1926).

9-22-7. Apportionment of surveyors’ and other fees.

Any court may divide or apportion, between the parties in a suit pending, the fees of surveyors and other persons performing services therein by direction of the court.

History of Section. C.P.A. 1905, § 447; G.L. 1909, ch. 295, § 7; G.L. 1923, ch. 345, § 7; G.L. 1938, ch. 536, § 7; G.L. 1956, § 9-22-7 .

Collateral References.

Allowance of fees for guardian ad litem appointed for infant defendant, as costs taxable against decedent’s estate. 30 A.L.R.2d 1148.

Apportionment of costs in litigation by beneficiary respecting trust. 9 A.L.R.2d 1132.

Apportionment of costs where judgment is against plaintiff on his complaint and against defendant on his counterclaim. 75 A.L.R. 1400.

Power of court which appoints or employs expert witnesses to tax their fees and costs. 39 A.L.R.2d 1376.

9-22-8. Costs in excess of claim — Attachment on small claims.

In civil actions, no plaintiff shall recover costs in excess of the amount of his or her claim; nor shall any plaintiff in any action commenced by original writ or by writ of mesne process where property other than real estate is attached recover the costs of the attachment when the final judgment is for an amount less than fifty dollars ($50.00), unless the obligation sued upon is for necessaries furnished the defendant.

History of Section. G.L., ch. 345, § 21, as enacted by P.L. 1936, ch. 2392, § 1; G.L. 1938, ch. 536, § 8; P.L. 1940, ch. 933, § 1; G.L. 1956, § 9-22-8 .

9-22-9. Costs on motions, petitions, and appeals.

Any court may award costs on motions, petitions, or appeals filed in actions, suits, and other proceedings pending before it, for or against either party, in its discretion, and upon such terms and conditions as it may prescribe by general rule or special order.

History of Section. C.P.A. 1905, § 449; G.L. 1909, ch. 295, § 9; G.L. 1923, ch. 345, § 9; G.L. 1938, ch. 536, § 9; G.L. 1956, § 9-22-9 ; P.L. 1972, ch. 169, § 8.

NOTES TO DECISIONS

In General.

Court could award costs to successful petitioner in proceeding to restore name to voting list, but costs were denied where error of board of canvassers was on a point that had not previously been determined by the courts. McCaughey v. Board of Canvassers, 28 R.I. 545 , 68 A. 582, 1908 R.I. LEXIS 78 (1908).

Order assessing witness and counsel fees as condition to assigning cause for trial made subsequently to and not as a part of granting of continuance was not an award of costs authorized by this section. Vingi v. Read, 68 R.I. 484 , 29 A.2d 637, 1943 R.I. LEXIS 1 (1943).

Pending Proceedings.

It is clear that this section limits the trial court’s authority to award costs only in proceedings pending before that court. Lee v. Nielsen, 426 A.2d 257, 1981 R.I. LEXIS 1044 (1981).

An action is “pending” until it has been ultimately reduced to judgment or otherwise terminated. The test of finality of a judgment is whether it terminates the litigation between the parties on the merits. Lee v. Nielsen, 426 A.2d 257, 1981 R.I. LEXIS 1044 (1981).

9-22-10. Matters before superior court in vacation.

In all cases where power is conferred upon the superior court to hear and determine any matter in vacation, the court may, in its discretion, award costs to either or neither party thereto, or divide the costs in any proportion between the parties; such costs to be taxed by the clerk unless objected to by either party, in which event the costs shall be passed on by the court, and, if allowed, collected by execution.

History of Section. C.P.A. 1905, § 450; G.L. 1909, ch. 295, § 10; G.L. 1923, ch. 345, § 10; G.L. 1938, ch. 536, § 10; G.L. 1956, § 9-22-10 .

9-22-11. Costs to defendant on withdrawal or discontinuance.

If the plaintiff in any case shall file his or her complaint as is provided by law and shall afterward withdraw or discontinue his or her suit after pleadings filed by the defendant, the defendant in the case shall recover his or her costs.

History of Section. C.P.A. 1905, § 451; G.L. 1909, ch. 295, § 11; G.L. 1923, ch. 345, § 11; G.L. 1938, ch. 536, § 11; G.L. 1956, § 9-22-11 .

Rules of Court.

Costs of previously dismissed action in district court, see Dist. Ct. Civil Rule 41(d).

Costs of previously dismissed action in superior court, see Super. Ct. R. Civ. P. Rule 41(d).

Collateral References.

Construction, as to terms and conditions, of state statute or rule providing for voluntary dismissal without prejudice upon such terms and conditions as state court deems proper. 34 A.L.R.4th 778.

9-22-12. Discharge or discontinuance as to codefendant.

Whenever several persons shall be made defendants in any action and the action shall be discontinued as to any one or more of the defendants, or if, upon the trial thereof, any one or more of them shall be acquitted by verdict or upon motion, every defendant so discharged or acquitted shall have and recover his or her costs.

History of Section. C.P.A. 1905, § 452; G.L. 1909, ch. 295, § 12; G.L. 1923, ch. 345, § 12; G.L. 1938, ch. 536, § 12; G.L. 1956, § 9-22-12 .

9-22-13. Travel and attendance costs of joint party.

In all civil actions brought by or against a firm, company, or partnership and where there is a joint cause of action or joint defense, costs for travel and attendance of only one of the parties recovering judgment shall be taxed.

History of Section. C.P.A. 1905, § 453; G.L. 1909, ch. 295, § 13; G.L. 1923, ch. 345, § 13; G.L. 1938, ch. 536, § 13; G.L. 1956, § 9-22-13 .

9-22-14. Actions by assignee or indorsee of promissory note.

In all actions on promissory notes in the name of the assignee or indorsee of the note against the original promisor, no more costs shall be taxed than would by law be taxable if the action had been brought in the name of the payee of the note.

History of Section. C.P.A. 1905, § 454; G.L. 1909, ch. 295, § 14; G.L. 1923, ch. 345, § 14; G.L. 1938, ch. 536, § 14; G.L. 1956, § 9-22-14 .

9-22-15. Witness fees allowed where certificate filed after judgment.

Unless the certificate of a witness for his or her attendance and travel is filed with the clerk of the court rendering judgment not later than ten (10) days after the rendition of judgment in the cause in which he or she shall have attended or been summoned, no more fees shall be taxed in favor of the party procuring the witness than one day’s attendance and travel; provided, that in a district court no fees shall be taxed in favor of the party procuring the witness in any cause in which an appeal shall be claimed after judgment, unless there shall be filed with the clerk of the court within one day after entry of judgment, exclusive of Sundays and legal holidays, the certificate of the witness for his or her attendance and travel, or the summons for the witness; in which latter case fees shall be taxed for only one day’s attendance and travel.

History of Section. C.P.A. 1905, § 455; G.L. 1909, ch. 295, § 15; G.L. 1923, ch. 345, § 15; P.L. 1929, ch. 1331, § 9; G.L. 1938, ch. 536, § 15; G.L. 1956, § 9-22-15 ; P.L. 1965, ch. 55, § 37.

Cross References.

Expert witnesses, fees, § 9-17-22 .

Witness fees, §§ 9-17-6 , 9-17-18 .

NOTES TO DECISIONS

Date of Judgment.

Where clerk of superior court erroneously antedated judgment after return from supreme court, the day of rendition of judgment for purposes of this section was the actual date the judgment was entered, rather than the date shown by the record. Ricci v. Matteodo, 54 R.I. 123 , 170 A. 65, 1934 R.I. LEXIS 7 (1934).

Collateral References.

Power of court which appoints or employs expert witnesses to tax their fees as costs. 39 A.L.R.2d 1376.

9-22-16. Extra costs for appeal to delay.

If it shall appear, on an appeal, exception, or other proceeding, from a lower to a higher court, that the proceeding has been taken (or affidavit filed) solely for delay, the court shall impose double costs on the party so seeking delay, or, in its discretion, treble costs if the case shall seem to warrant it.

History of Section. C.P.A. 1905, § 456; G.L. 1909, ch. 295, § 16; G.L. 1923, ch. 345, § 16; G.L. 1938, ch. 536, § 16; G.L. 1956, § 9-22-16 .

NOTES TO DECISIONS

Treble Costs.

Where, in matter involving $7.00, defendant demanded jury trial, then petitioned supreme court for new trial on an untenable ground, apparently to hinder and delay, treble costs were awarded. Eldred v. Avedisian, 27 R.I. 68 , 60 A. 677, 1905 R.I. LEXIS 26 (1905).

9-22-17. Taxation by clerk — Approval or revision by justice.

Subject to regulation by rule of court, all bills of costs shall be taxed by the clerks of the respective court, and, when objected to, shall be revised or approved by one of the justices of the court in which the judgment or order is entered, or by the justice of the district court, when the case is in a district court.

History of Section. C.P.A. 1905, § 457; G.L. 1909, ch. 295, § 17; G.L. 1923, ch. 345, § 17; G.L. 1938, ch. 536, § 17; G.L. 1956, § 9-22-17 ; P.L. 1965, ch. 55, § 37.

Rules of Court.

Costs to prevailing party, see Super. Ct. R. Civ. P. Rule 54(d).

Costs to prevailing party in district court, see Dist. Ct. R. Civ. P. Rule 54(c).

Taxation of costs in superior court, see Super. Ct. R. Civ. P. Rule 54(e).

NOTES TO DECISIONS

Action for Costs.

Action by officer to recover costs was premature as to costs that had not yet been taxed pursuant to this section. Gerardi v. Caruolo, 27 R.I. 214 , 61 A. 599, 1905 R.I. LEXIS 73 (1905).

Revision of Costs.

Superior court did not have jurisdiction to vacate judgment on grounds of mistake as to costs, since under this section aggrieved party had a full right to a hearing and revision. Bottum & Torrance Co. v. Consolidated Yarns, 53 R.I. 50 , 163 A. 544, 1933 R.I. LEXIS 21 (1933).

9-22-18. Disallowance of unjustified costs — Costs for written evidence.

The justice of any court, who shall examine and approve any bill of costs, shall strike out and disallow any sum that may be taxed or demanded for the expense of any witness, or any evidence whatsoever, that shall appear to the justice to be overcharged, frivolous, or not material to the issue of the cause; and no costs shall be allowed for any written evidence, unless the fees are noted thereon, or certified by the officer who issued or made out the written evidence.

History of Section. C.P.A. 1905, § 458; G.L. 1909, ch. 295, § 18; G.L. 1923, ch. 345, § 18; G.L. 1938, ch. 536, § 18; G.L. 1956, § 9-22-18 .

9-22-19. Expense of printing record.

The expense of printing the record in any case where the parties agree to have the record printed, or where the court orders the printing, shall be taxed as other costs in the case.

History of Section. C.P.A. 1905, § 459; G.L. 1909, ch. 295, § 19; G.L. 1923, ch. 345, § 19; G.L. 1938, ch. 536, § 19; G.L. 1956, § 9-22-19 .

Collateral References.

Record, briefs, and printing charges as allowable items of costs in litigation by beneficiary respecting trust. 9 A.L.R.2d 1132.

9-22-20. Costs on appeal.

In all appeals, the court appealed to, on rendering judgment therein, may award costs for or against the appellant or appellee, or for neither of them, or may apportion the costs among the parties appellant and appellee, according to the circumstances of the case, and as shall appear equitable.

History of Section. C.P.A. 1905, § 460; G.L. 1909, ch. 295, § 20; G.L. 1923, ch. 345, § 20; G.L. 1938, ch. 536, § 20; G.L. 1956, § 9-22-20 .

Cross References.

Costs in superior court on appeal from district court, § 9-12-13 .

NOTES TO DECISIONS

Joint Parties.

Where one joint party appeals, joining the other as appellant, the court should assess costs, if any, entirely against the moving party. Bassett v. Loewenstein, 22 R.I. 468 , 48 A. 589, 1901 R.I. LEXIS 35 (1901).

No Costs.

Where, in appeal from school district, motion to quash proceedings of district could have been made immediately on appeal but was delayed until after district had presented its evidence in jury trial, costs were not awarded against district. Howland v. Sch. Dist., 16 R.I. 257 , 15 A. 74, 1888 R.I. LEXIS 50 (1888).

Collateral References.

Attorneys’ fees incurred on appeal in attempt to establish or defeat will, right to allowance for, out of estate. 10 A.L.R. 788; 69 A.L.R. 1054; 128 A.L.R. 1002; 40 A.L.R.2d 1407.

Award of costs by appellate court as affected by subsequent proceedings or course of the action in the lower court. 116 A.L.R. 1152.

Recovery of Computer-Assisted Research Costs as Part of or in Addition to Attorney’s Fees Under State Law. 33 A.L.R.6th 305.

9-22-21. Costs on depositions.

The taxation of costs in the taking of depositions shall be subject to the discretion of the court. No costs shall be allowed unless the court finds that the taking of the deposition was reasonably necessary, whether or not the deposition was actually used at the trial. Taxable costs may include the cost of service of subpoena upon the deponent, the reasonable charge of the officer before whom the deposition was taken, the fees and mileage allowances of witnesses, the stenographer’s reasonable fee for attendance, and the cost of the transcript of the testimony or such part thereof as the court may fix.

History of Section. P.L. 1965, ch. 55, § 38.

Collateral References.

Taxation of costs associated with videotaped depositions under 28 U.S.C.A. § 1920 and Rule 54(d) of Federal Rules of Civil Procedure.156 A.L.R. Fed. 311.

Chapter 23 Motion for New Trial [Repealed.]

9-23-1 — 9-23-5. Repealed.

History of Section. C.P.A. 1905, §§ 485 to 489; G.L. 1909, ch. 298, §§ 12-16; P.L. 1909, ch. 436, § 1; G.L. 1923, ch. 348, §§ 12-16; G.L. 1938, ch. 540, §§ 1-5; G.L. 1956, §§ 9-23-1 — 9-23-5; P.L. 1965, ch. 55, § 40; P.L. 1970, ch. 110, § 1; Repealed by P.L. 1972, ch. 169, § 9.

Chapter 24 Appellate Proceedings

9-24-1. Filing of appeal.

Any party aggrieved by a final judgment, decree, or order of the superior court may, within the time prescribed by applicable procedural rules, appeal to the supreme court. Subject to the provisions of applicable procedural rules, the party appealing shall file a claim of appeal in the office of the clerk of the court from which the appeal is taken, and shall deposit with the clerk an amount not exceeding fifty dollars ($50.00) as prescribed by the rules and regulations of the supreme court, in addition to a technology surcharge assessed in accordance with § 8-15-11 .

History of Section. C.P.A. 1905, § 328; G.L. 1909, ch. 289, § 25; G.L. 1923, ch. 339, § 25; G.L. 1938, ch. 541, § 1; P.L. 1955, ch. 3497, § 1; P.L. 1956, ch. 3752, § 1; G.L. 1956, § 9-24-1 ; P.L. 1965, ch. 55, § 41; P.L. 1972, ch. 169, § 10; P.L. 1975, ch. 244, § 1; P.L. 2014, ch. 34, § 4; P.L. 2014, ch. 42, § 4.

Compiler’s Notes.

P.L. 2014, ch. 34, § 4, and P.L. 2014, ch. 42, § 4 enacted identical amendments to this section.

Rules of Court.

Cost of transcript, Super. Ct. R. Civ. P. Rule 78.

Duty of stenographer with respect to transcript, see Super. Ct. R. Prac. Rule 3.5.

For rule relating to taking out transcripts of evidence, see Sup. Ct. R., Article I, Rule 29.

For rules governing docketing and assignment of cases in the supreme court, see Sup. Ct. R., Article I, Rule 12.

Manner of preparing transcript, see Super. Ct. R. Civ. P. Rule 78.

Notice of appeal to supreme court, see Super. Ct. R. Civ. P., Form 27.

Cross References.

Allowance of appellate proceedings after time expired, § 9-21-6 .

Arbitration cases, appeals in, § 10-3-19 .

Arbitration in labor controversies, appeal from, § 28-9-25 .

Banks and trust companies, orders of director of business regulation to discontinue unsafe practices, § 19-14-5 .

Bedding and upholstered furniture, decisions of director of business regulation, § 23-26-26 .

Dairy farm, suspension of registration by director, appeal, § 21-2-13 .

District to superior court, claim of appeal, § 9-12-10 .

Executor or administrator denied right to borrow money, appeal by, § 33-9-21 .

Forcible entry and detainer, certiorari, § 34-19-9 .

General power of supreme court, § 8-1-2 .

Judicial review of contested cases, § 42-35-15 .

Oyster ground leases, appeal, § 20-10-15 et seq.

Probate appeals, § 33-23-1 et seq.

Public utility hearing board, appeal from, § 42-35-15 .

Racing and athletics hearing board decision, certiorari, § 41-2-6 .

Rate order of public utility administrator, appeal from, § 39-5-1 et seq.

Support of dependents of person under guardianship, appeals concerning, § 33-15-40 .

Voting list, right to appeal striking of name, § 17-10-12 .

Water pollution, appeal from order of sanitary engineering division, § 46-12-21 et seq.

Workers’ compensation court, appeal from, § 28-35-29 et seq.

Comparative Legislation.

Appeals:

Conn. Gen. Stat. §§ 7-143, 52-263 et seq. 52-405.

Mass. Ann. Laws ch. 231, § 97 et seq.

NOTES TO DECISIONS

Aggrieved Parties.

A party against whom a judgment for costs has been entered with his consent is nevertheless an aggrieved party and may appeal even though the party’s demurrer to a plea in abatement was upheld by the lower court and the judgment on costs awarded before the issues were joined. Ellis v. Ellis, 4 R.I. 110 , 1856 R.I. LEXIS 15 (1856).

An administrator could properly bring an appeal from a decree directing distribution since he was interested in the allowance of his compensation and since he represented the estate regarding the allowance of accounts or claims against the estate. Daboll v. Field, 9 R.I. 266 , 1869 R.I. LEXIS 27 (1869).

Respondents in whose favor a decree was entered in the superior court on grounds other than jurisdictional were not aggrieved by the decree so as to be able to raise the question of jurisdiction of the superior court by a motion to dismiss the appeal of complainants to the supreme court. Masse v. Church of Our Lady of Consolation, 49 R.I. 269 , 141 A. 703, 1928 R.I. LEXIS 50 (1928).

Party who did not appeal must, on adverse party’s appeal, abide by the decree of the trial court. Boulanger v. Hebert, 58 R.I. 213 , 192 A. 220, 1937 R.I. LEXIS 33 (1937).

Probate judge is not an aggrieved party so as to be able to appeal from a superior court writ of mandamus which in effect reversed a decision of the probate judge. Bowles v. Dannin, 62 R.I. 36 , 2 A.2d 892, 1938 R.I. LEXIS 9 (1938).

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 the joint contribution among tortfeasors act, § 10-6-1 et seq., and therefore defendants were not aggrieved parties for purposes of appeal within the meaning of this section 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).

Where sale agreement entered into between agent for sale of land and plaintiff contained no reference to an easement, but deed executed by landowner reserved an easement and in suit brought by plaintiff against both agent and landowner for reformation of deed, court ordered the landowner to reform the deed, agent had no standing to appeal since any effect such judgment might have on the rights of agent were speculative. Adams v. United Developers, Inc., 121 R.I. 177 , 397 A.2d 503, 1979 R.I. LEXIS 1761 (1979).

Where a property owner filed an action to quiet title to roads on a wharf; the State had standing to appeal from a judgment in favor of the owner because, irrespective of the owner’s rationale for joining the State in its lawsuit, the unambiguous language of R.I. Gen. Laws § 9-24-1 entitled the State to challenge the adverse judgment. Newport Realty, Inc. v. Lynch, 878 A.2d 1021, 2005 R.I. LEXIS 156 (2005).

In a slip and fall suit against a city and the State of Rhode Island, the State lacked standing to appeal the trial court’s grant of summary judgment to the city because, not having filed a cross-claim against the city, the State was not a “party aggrieved by a final judgment.” Lombardi v. City of Providence, 69 A.3d 846, 2013 R.I. LEXIS 122 (2013).

Estate’s appeal of an order granting joint tenants’ motion to dismiss a partition action on the ground that the decedent’s demise terminated her interest in a joint tenancy was properly before the Supreme Court because the estate was clearly aggrieved; if the dismissal was upheld, the estate would be left with no interest in the property. Butler v. Gavek, 245 A.3d 750, 2021 R.I. LEXIS 11 (2021).

Certiorari.

In cases where an appellate review of interlocutory decrees before final decree is proper, certiorari will lie, since there is no appeal from such decrees. Hyde v. Superior Court, 28 R.I. 204 , 66 A. 292, 1907 R.I. LEXIS 20 (1907).

Where another remedy is provided for review of an alleged error, a petition for certiorari will not lie, but where petitioners brought petition for certiorari even though this section provided for appeal to supreme court, because petition was brought within the 20-day time limit specified for appeals by Supreme Court Rule 4(a), the court treated the petition for certiorari as though it were a claim of appeal. Murphy v. Charlie's Home Improvement Co., 117 R.I. 324 , 366 A.2d 809, 1976 R.I. LEXIS 1633 (1976).

Where the proceeding in the superior court was a civil action seeking injunctive relief, rather than an appeal from an administrative decision, and the director of the department of environmental management could have appealed as of right from the superior court judgment, the director’s petition for certiorari should have been denied. State Dep't of Envtl. Management v. Dutra, 121 R.I. 614 , 401 A.2d 1288, 1979 R.I. LEXIS 1881 (1979).

Custody Proceedings.

Where relief was sought under the provisions of § 15-5-19 on petition to regulate custody and visitation, without commencement of divorce proceedings and where petitioner had filed under the procedures prescribed in this section and also under the procedures prescribed in former § 9-24-13 (which statute prior to 1965 amendment provided for exceptions in civil as well as criminal cases), a bill of exceptions under former § 9-24-13 was the appropriate appellate procedure to employ. Lynch v. Lynch, 93 R.I. 143 , 172 A.2d 335, 1961 R.I. LEXIS 91 (1961).

Default Judgments.

Where a default judgment was entered by a court clerk against the defendant but that judgment was later vacated by a superior court justice on the ground that the clerk had no jurisdiction to enter a default judgment under the circumstances, the order of the superior court was interlocutory and therefore not appealable. American Underwriting Corp. v. Lombardi, 121 R.I. 921 , 393 A.2d 1111, 1978 R.I. LEXIS 811 (1978).

An order vacating a default judgment is interlocutory and therefore not ordinarily appealable. Spaziano v. Spaziano, 397 A.2d 531, 1979 R.I. LEXIS 2339 (1979).

Divorce and Alimony.

No appeal lies from a final decree of the superior court in a petition for divorce. Fidler v. Fidler, 28 R.I. 102 , 65 A. 609, 1907 R.I. LEXIS 2 (1907).

A decree on a claim for alimony entered after the entry of final decree for divorce would be reviewed on appeal. Phillips v. Phillips, 39 R.I. 92 , 97 A. 593, 1916 R.I. LEXIS 26 (1916).

Appeal was the proper remedy where superior court denied motion to modify final decree for alimony. Ward v. Ward, 48 R.I. 60 , 135 A. 241, 1926 R.I. LEXIS 16 (1926).

Appeal would not lie from an interlocutory decree in a divorce proceeding granting an allowance pendente lite and counsel fees. Rosenfeld v. Rosenfeld, 51 R.I. 381 , 155 A. 244, 1931 R.I. LEXIS 58 (1931).

A decree in the family court determining the property rights of parties to a divorce has sufficient elements of finality to be appealable to the supreme court. Cavanagh v. Cavanagh, 118 R.I. 608 , 375 A.2d 911, 1977 R.I. LEXIS 1501 (1977).

In spite of fact that proper method of appeal from the family court is by appeal from a decree, where family court denied and dismissed petition for divorce but no decree was ever filed, the Supreme Court treated the decision as though it were a decree for purposes of appeal. Flynn v. Flynn, 120 R.I. 575 , 388 A.2d 1170, 1978 R.I. LEXIS 698 (1978).

Failure to Appeal.

When a party to a proceeding in equity fails to prosecute an appeal from a decree entered therein pursuant to the pertinent statutory provisions, it is deemed to have elected to abide by such decree and will not be heard to press objections to its validity on an appeal by an adverse party. Broadway Auto Sales v. Asselin, 93 R.I. 403 , 176 A.2d 714, 1961 R.I. LEXIS 128 (1961).

Finality of Decree, Judgment or Order.

Compiler’s Notes. Prior to 1965 this section applied only to equity cases. Other cases were reviewed by bill of exceptions. For such reason the cases below are equity cases.

The general rule is that a decree to be final must terminate the litigation of the parties on the merits of the case, so that if there is an affirmance on appeal there would be nothing for the lower court to do except to execute the decree already rendered. McAuslan v. McAuslan, 34 R.I. 462 , 83 A. 837, 1912 R.I. LEXIS 61 (1912); Lederer v. Rosen, 43 R.I. 315 , 111 A. 872, 1920 R.I. LEXIS 74 (1920).

Decree entered under provisions of § 9-14-25 granting allowance of counsel fees to be paid out of assets of estate involved was a final decree from which an appeal is allowed. Montaquila v. Montaquila, 85 R.I. 447 , 133 A.2d 119, 1957 R.I. LEXIS 50 (1957).

A judgment of the superior court denying and dismissing the motion of a third party to intervene has that element of finality essential to the validity of an appeal claimed under this section. Industrial Nat'l Bank v. Colt, 101 R.I. 488 , 224 A.2d 900, 1966 R.I. LEXIS 421 (1966).

Denial of the superior court of an executor’s motion to strike as prejudicial certain language in an appeal from the probate court’s allowance of his first account as such executor was not a final judgment so as to be appealable under this section. Apollonio v. Kenyon, 101 R.I. 598 , 225 A.2d 789, 1967 R.I. LEXIS 804 (1967).

In a property owners’ suit to enjoin the city’s abandonment of streets and alleys, an order denying defendant’s motion to strike plaintiff’s motion for a jury trial and assigning the case to determine whether the issues to be framed by plaintiffs were appropriate for jury trial, was not a final judgment appealable under this section. Corrado v. City of Providence, 114 R.I. 691 , 337 A.2d 811, 1975 R.I. LEXIS 1472 (1975).

An appeal may not be taken from a trial justice’s decision denying defendants’ motion to dismiss plaintiffs’ complaint for failure to state a claim upon which relief can be granted, prior to the entry of judgment. Simmons v. State, 119 R.I. 578 , 381 A.2d 1045, 1978 R.I. LEXIS 590 (1978).

An order vacating a notice of lis pendens has the requisite finality on a matter which is collateral to the main action so as to be immediately appealable within the provisions of this section, hence certiorari will not lie. Zito v. East Side Assocs., 119 R.I. 629 , 381 A.2d 1364, 1978 R.I. LEXIS 594 (1978); George v. Oakhurst Realty, 414 A.2d 471, 1980 R.I. LEXIS 1557 (1980).

Where plaintiffs filed a complaint seeking a preliminary injunction and defendants filed a counterclaim for damages, the court’s determination of liability only, reserving determination of the matter of damages for a later date, was not a final judgment for purposes of appeal since not all of the rights and liabilities of the parties had been adjudicated. Pearson v. Old Stone Sav. Bank, 119 R.I. 836 , 383 A.2d 1029, 1978 R.I. LEXIS 620 (1978).

A final judgment or order for purposes of appealability is one that terminates all the litigation arising out of the action between the parties on the merits. State v. Piedmont Funding Corp., 121 R.I. 27 , 394 A.2d 694, 1978 R.I. LEXIS 749 (1978).

Defendant in a criminal case had no right to appeal from a judgment convicting her of disorderly conduct where the trial justice filed her case for one year, pursuant to R.I. Gen. Laws § 12-10-12 the defendant was not sentenced. In a criminal case, the sentence constituted the final judgment, and absent that, there was no final judgment, no justiciable issue was presented, and no appeal was possible; R.I. Gen. Laws § 9-24-1 allowed appeals only from final judgments. State v. Brown, 899 A.2d 517, 2006 R.I. LEXIS 86 (2006).

Denial of a motion for summary judgment with regard to the issue of coverage in an insurance dispute matter was properly before the court as a final judgment under R.I. Gen. Laws § 9-24-1 because the trial court had properly certified the summary judgment order as final under R.I. Super. Ct. R. Civ. P. 54 (b); by entering judgment in favor of the manager on the question of coverage, the trial court made a final decision on that claim, and there was no just reason for delay as the only unadjudicated matter was uncomplicated. Metro Props. v. Nat'l Union Fire Ins. Co., 934 A.2d 204, 2007 R.I. LEXIS 104 (2007).

As an order denying a store patron’s motion for a continuance was not final, and it was not within the narrow exceptions permitting appeal of interlocutory orders under R.I. Gen. Laws § 9-24-1 , a trial court correctly denied the patron’s motion for a stay of the proceeding pending her appeal from the continuance denial order. Coates v. Ocean State Jobbers, Inc., 18 A.3d 554, 2011 R.I. LEXIS 57 (2011).

— Compelling Production of Documents.

An appeal does not lie from an order under former § 9-19-23 directing the production of documents since this is not a final decree. Hemenway v. Hemenway, 28 R.I. 85 , 65 A. 608, 1906 R.I. LEXIS 12 (1906).

— Decree Pro Confesso.

Entry of decree pro confesso when no answer was filed after demurrer was overruled was interlocutory and no appeal could be taken. Remington v. Barney, 35 R.I. 267 , 86 A. 891, 1913 R.I. LEXIS 33 (1913).

— Demurrer.

A decree sustaining the demurrer to a crossbill was not a final decree inasmuch as there had been no decision in the superior court on the merits of the case; therefore appeal could not be taken under this section. Acme Finishing Co. v. Greenville Finishing Co., 43 R.I. 294 , 111 A. 721, 1920 R.I. LEXIS 70 (1920).

— Irreparable Injury.

Subcontractor claiming lien for labor and materials could appeal from interlocutory order of superior court dismissing claim under general discretion of supreme court to avoid irreparable injury and injustice. Art Metal Constr. Co. v. Knight, 56 R.I. 228 , 185 A. 136, 1936 R.I. LEXIS 98 (1936).

A decree approving a temporary receiver’s report, fixing his fees, and apportioning the fees between the parties, though technically interlocutory, could be appealed because of possible injurious consequences. Davis v. Perrino, 60 R.I. 145 , 197 A. 393, 1938 R.I. LEXIS 119 (1938).

Even assuming that decree authorizing cotrustee to increase his compensation for sales of estate to eight per cent was not a final decree it would be appealable because of possible injurious consequences. Montaquila v. Montaquila, 85 R.I. 447 , 133 A.2d 119, 1957 R.I. LEXIS 50 (1957).

An interlocutory order may be considered on appeal where it appears that prompt action is necessary to avoid imminent and irreparable injury. Pearson v. Old Stone Sav. Bank, 119 R.I. 836 , 383 A.2d 1029, 1978 R.I. LEXIS 620 (1978).

Certain interlocutory orders will be treated as possessing sufficient elements of finality and reviewed immediately when such a determination is necessary to prevent injurious consequences. State v. Piedmont Funding Corp., 121 R.I. 27 , 394 A.2d 694, 1978 R.I. LEXIS 749 (1978).

The injury necessary to bring a case within the exception to the general rule that the party aggrieved by an interlocutory order or decree may suffer some injury or prejudice if he is compelled to wait for the disposition of the entire cause before taking his appeal must be shown to be clearly imminent and irreparable, unless an immediate appeal is allowed. State v. Piedmont Funding Corp., 121 R.I. 27 , 394 A.2d 694, 1978 R.I. LEXIS 749 (1978).

— Lien Proceedings.

Appeal could be taken from a decree in a mechanic’s lien proceeding finding that petitioner had a legal claim and referring the case to a master. Robert v. Rousseau, 28 R.I. 335 , 67 A. 330, 1907 R.I. LEXIS 54 (1907), overruled, Lederer v. Rosen, 43 R.I. 315 , 111 A. 872, 1920 R.I. LEXIS 74 (1920). But see Lederer v. Rosen, 43 R.I. 315 , 111 A. 872, 1920 R.I. LEXIS 74 (1920).

A litigant may not obtain a piecemeal review of his case by the supreme court, but, in an action seeking to set aside a conveyance of real estate as fraudulent and to have the money judgment sought by plaintiff declared a lien against it, an order vacating plaintiff’s attachment of such real estate had such finality as to entitle plaintiff to appeal therefrom. Eidam v. Eidam, 108 R.I. 673 , 279 A.2d 413, 1971 R.I. LEXIS 1322 (1971).

— Partition Proceedings.

Decree to partition real estate and appointing a commissioner to sell and convey was an interlocutory decree so that an appeal therefrom must be taken within the time prescribed by § 9-24-7 . Angevine v. O'Mara, 35 R.I. 253 , 86 A. 558, 1913 R.I. LEXIS 23 (1913).

A decree in partition case which provided for sale and for distribution of proceeds was a final decree since nothing remained for the court to do except to issue a supplemental order for enforcement. McQuillan v. McQuillan, 35 R.I. 373 , 87 A. 167, 1913 R.I. LEXIS 45 (1913).

— Prejudgment Attachments.

Because orders granting prejudgment attachments of real estate are interlocutory and involve no threat of hardship or injury, such orders are generally not appealable. Cull v. Vadnais, 122 R.I. 249 , 406 A.2d 1241, 1979 R.I. LEXIS 2189 (1979).

— Receivership.

Decree authorizing receiver to sell assets of corporation at public auction was interlocutory, and appeal was dismissed where claimed later than the time allowed by § 9-24-7 . Fairchild v. Uniform Seamless Wire Co., 41 R.I. 139 , 102 A. 962, 1918 R.I. LEXIS 20 (1918).

Decree appointing a receiver of rents and profits of jointly held property was a final decree within the meaning of this section, since all relief asked was granted, so that appeal would lie under this section. Kaiser v. Burger, 64 R.I. 83 , 10 A.2d 355, 1940 R.I. LEXIS 11 (1940).

— Reference to Master.

Appeal would not lie from a decree confirming a master’s report but rather from the later decree determining the rights of the parties and granting relief. McAuslan v. McAuslan, 34 R.I. 462 , 83 A. 837, 1912 R.I. LEXIS 61 (1912).

In a bill for specific performance, a decree ordering a conveyance, but referring to a master the question of a reduction from the purchase price, was not a final decree so as to authorize appeal under this section. Lederer v. Rosen, 43 R.I. 315 , 111 A. 872, 1920 R.I. LEXIS 74 (1920).

A decree which granted all the relief asked, including referral to a master for the taking of an account, conveyance of interests in leases, and enjoining the alienation of leases, was a final decree so that appeal would lie under this section. Joslin v. Astle, 56 R.I. 61 , 183 A. 637, 1936 R.I. LEXIS 75 (1936).

— Restraining Order.

No appeal could be taken from an order releasing restraining order as against safe-deposit vault, since order did not terminate the litigation between the parties. Ross v. Mencoff, 82 R.I. 461 , 111 A.2d 356, 1955 R.I. LEXIS 94 (1955).

Where respondent filed motion to dismiss a bill in equity for injunctive and affirmative relief against violation of restriction imposed by deed to all purchasers of lots in real estate development, and such motion was denied without prejudice, there was neither a “final decree” nor such an “interlocutory decree” as would support an immediate appeal. Coen v. Corr, 90 R.I. 185 , 156 A.2d 406, 1959 R.I. LEXIS 134 (1959).

An interlocutory order granting or continuing an injunction as though it were a final judgment may be considered final for purposes of appeal pursuant to § 9-24-7 . Pearson v. Old Stone Sav. Bank, 119 R.I. 836 , 383 A.2d 1029, 1978 R.I. LEXIS 620 (1978).

— Stay of Execution.

A decree staying execution until the determination of the appeal was not a final one, so no appeal would lie. Boyden v. Boyden, 50 R.I. 326 , 147 A. 621, 1929 R.I. LEXIS 69 (1929).

Prerogative Writ Cases.

Since this section, prior to 1965 amendment, specified a right of appeal in prerogative writ cases, § 8-2-16 giving the superior court concurrent jurisdiction in such cases did not violate Art. XII of the Amendments to the Constitution. Higgins v. Tax Assessors, 27 R.I. 401 , 63 A. 34, 1905 R.I. LEXIS 106 (1905).

Remedy on denial of mandamus is by appeal and not by bill of exceptions. Fiske v. Vaughn, 29 R.I. 465 , 72 A. 530, 1909 R.I. LEXIS 42 (1909); Rice v. Cranston, 41 R.I. 141 , 103 A. 3, 1918 R.I. LEXIS 22 (1918).

Procedure in Supreme Court.

An appeal under this section does not bring about a retrial in the supreme court but merely a review of the errors complained of. Vaill v. McPhail, 34 R.I. 361 , 83 A. 1075, 1912 R.I. LEXIS 71 (1912); Shepard v. Springfield Fire & Marine Ins. Co., 42 R.I. 174 , 105 A. 576, 1919 R.I. LEXIS 14 (1919); Masse v. Church of Our Lady of Consolation, 49 R.I. 269 , 141 A. 703, 1928 R.I. LEXIS 50 (1928); Boulanger v. Hebert, 58 R.I. 213 , 192 A. 220, 1937 R.I. LEXIS 33 (1937).

Tax Administrator.

Judicial review of a decision of the tax administrator by the superior court is the exclusive remedy available to a taxpayer as of right in cases involving the investment tax statute, § 44-28-1 et seq. (since repealed), and an appeal under this statute is not proper. Fox v. Norberg, 110 R.I. 418 , 293 A.2d 520, 1972 R.I. LEXIS 930 (1972).

Time for Claiming Appeal.

Where the statutory period within which an appeal could be claimed by a new party had elapsed and the original petitioners had withdrawn, the appeal would be dismissed. Fiske v. Vaughn, 30 R.I. 303 , 75 A. 97, 1910 R.I. LEXIS 16 (1910).

The five days for the allowance of an appeal (as provided in this section prior to 1965 amendment) ran from the formal entry of the judgment and not from the time of decision. Coro Fed. Credit Union v. Winograd, 86 R.I. 75 , 133 A.2d 749, 1957 R.I. LEXIS 71 (1957).

The filing of a claim of appeal, prior to the entry of a decree, does not in and of itself render the appeal defective so as to deny appellant a review where the filing of the reasons of appeal, together with the approved transcript, were entered subsequent to the entry of the decree and within the time approved by the superior court as disclosed by the records. Gray v. Leeman, 94 R.I. 451 , 182 A.2d 119, 1962 R.I. LEXIS 107 (1962).

Where, by the terms of the order that “any party is free to seek a different assessment,” of his portion of the master’s fee, and the litigation would not be terminated, the order was not final and the appeal was premature. State v. Piedmont Funding Corp., 121 R.I. 27 , 394 A.2d 694, 1978 R.I. LEXIS 749 (1978).

Zoning Board.

An appeal from a zoning board to the superior court is not a civil action appealable to the supreme court under this section. Bassi v. Zoning Bd. of Review, 107 R.I. 702 , 271 A.2d 210, 1970 R.I. LEXIS 829 (1970).

Though the words “in any civil action” were deleted by amendment, certiorari rather than appeal under this section is still the proper method for review of zoning cases. Corporation Serv. v. Zoning Bd. of Review, 112 R.I. 921 , 310 A.2d 145, 310 A.2d 146, 1973 R.I. LEXIS 1110 (1973).

Collateral References.

Amendment of judgment as affecting time for taking or prosecuting appellate review proceedings. 21 A.L.R.2d 285.

Appealability of judgment confirming or setting aside arbitration award. 7 A.L.R.3d 608.

Appealability of judgments on specific pleadings in intervention proceedings. 15 A.L.R.2d 336.

Appealability of order denying motion for judgment notwithstanding verdict where movant has been granted new trial. 57 A.L.R.2d 1198.

Appealability of order directing payment of money into court. 15 A.L.R.3d 568.

Appealability of order entered in connection with pretrial conference. 95 A.L.R.2d 1361.

Appealability of order granting, extending, or refusing to dissolve temporary restraining order. 19 A.L.R.3d 403.

Appealability of order granting or denying motion for vacation of void judgment. 81 A.L.R.2d 537.

Appealability of order granting or denying right of intervention. 15 A.L.R.2d 336.

Appealability of order granting or denying substitution of parties. 16 A.L.R.2d 1057.

Appealability of order granting or refusing stay or continuance under federal civil relief act because of litigant’s military service. 34 A.L.R.2d 1149.

Appealability of order, of court, possessing probate jurisdiction, allowing or denying tardy presentation of claim to personal representative. 66 A.L.R.2d 659.

Appealability of order on application for removal of personal representative, guardian, or trustee. 37 A.L.R.2d 751.

Appealability of order on motion to strike complaint with respect to an additional party. 16 A.L.R.2d 1023.

Appealability of order or decree compelling or refusing to compel arbitration. 94 A.L.R.2d 1071.

Appealability of order or judgment awarding or denying costs but making no other adjudication. 54 A.L.R.2d 927.

Appealability of order overruling motion for directed verdict, or for judgment, or the like, where jury has disagreed. 40 A.L.R.2d 1284.

Appealability of order overuling motion for judgment on pleadings. 14 A.L.R.2d 460.

Appealability of order overruling or sustaining motion to quash or set aside service of process. 30 A.L.R.2d 287.

Appealability of order pertaining to pre-trial examination, discovery, interrogatories, production of books and papers, and the like. 37 A.L.R.2d 586.

Appealability of order refusing to grant or dissolving temporary restraining order. 19 A.L.R.3d 459.

Appealability of order relating to transfer on jurisdictional grounds, of cause from one state court to another. 78 A.L.R.2d 1204.

Appealability of order setting aside or refusing to set aside default judgment. 8 A.L.R.3d 903.

Appealability of order staying or refusing to stay, action because of pendency of another action. 18 A.L.R.3d 400.

Appealability of order under statute providing for civil commitment of arrested narcotics addict. 98 A.L.R.2d 732.

Appealability of order vacating, or refusing to vacate, approval of settlement of infant’s tort claim. 77 A.L.R.2d 801.

Appealability of order with respect to motion for joinder of additional parties. 16 A.L.R.2d 1023.

Appealability of order with respect to reference. 75 A.L.R.2d 1007.

Appealability of state court’s order or decree compelling or refusing to compel arbitration. 6 A.L.R.4th 652.

Appealability, prior to final judgment, of order denying motion to set aside service of process as fraudulently effected. 98 A.L.R.2d 551.

Appealability prior to final judgment, of order discharging or vacating attachment or refusing to do so. 19 A.L.R.2d 640.

Appeal from judgment in proceeding for reinstatement of attorney after disbarment, suspension, or resignation.

Appellate review of rulings as to evidence, instructions or items recoverable, at instance of plaintiff who has requested, induced or consented to dismissal or nonsuit. 23 A.L.R.2d 664.

Attorney’s right to institute or maintain appeal where client refuses to do so. 91 A.L.R.2d 618.

Defeated party’s payment or satisfaction of, or other compliance with, civil judgment as barring his right to appeal. 39 A.L.R.2d 153.

Defect in pleadings as affecting right to appellate review of consent judgment. 69 A.L.R.2d 755.

Exclusion or inclusion of terminal Sunday or holiday in computing time for allowance of appeal. 61 A.L.R.2d 482.

Filing of notice of appeal as affecting jurisdiction of state trial court to consider motion to vacate judgment. 5 A.L.R.5th 422.

Formal requirements of decision on motion for new trial as regards appealability. 73 A.L.R.2d 250.

Formal requirements of judgment or order as regards appealability. 73 A.L.R.2d 250.

Inclusion or exclusion of first and last days in computing time for filing notice of appeal which must be filed a certain number of days before a known future date. 98 A.L.R.2d 1351.

Misjoinder of parties as affecting right to appellate review of consent judgment. 60 A.L.R.2d 813.

Order entered on motion to strike pleading, appealability. 1 A.L.R.2d 422.

Pardon as restoring public office or license or eligibility therefor. 58 A.L.R.3d 1191.

Participation in, acceptance of, or submission to, new trial as precluding appellate review of order granting it. 67 A.L.R.2d 191.

Provisions for future accounting as affecting finality of judgment or decree for purposes of review. 3 A.L.R.2d 342.

Reviewability of order denying motion for summary judgment. 15 A.L.R.3d 899.

Right of executor or administrator to appeal from order granting or denying distribution. 16 A.L.R.3d 1274.

Right of express trustee to appeal from order or decree not affecting own personal interests. 6 A.L.R.2d 147.

Right of winning party to appeal from judgment granting him full relief sought. 69 A.L.R.2d 701.

Right to appeal from order or judgment entered in bastardy proceedings. 18 A.L.R.2d 948.

Right to appellate review of consent judgment. 69 A.L.R.2d 755.

Right to appellate review, on single appellate proceedings, of separate actions consolidated for trial together in lower court. 36 A.L.R.2d 823.

Ruling on motion to quash execution as ground of appeal or writ of error. 59 A.L.R.2d 692.

Unsuccessful litigant’s payment of costs as barring his right to appeal from judgment on merits. 39 A.L.R.2d 194.

9-24-2 — 9-24-6. Repealed.

History of Section. C.P.A. 1905, §§ 328-332; P.L. 1906, ch. 1351, § 2; G.L. 1909, ch. 289, §§ 25-29; P.L. 1921, ch. 2086, §§ 7, 8; G.L. 1923, ch. 339, §§ 25-29; G.L. 1938, ch. 541, §§ 1-5; P.L. 1955, ch. 3497, § 1; P.L. 1956, ch. 3752, § 1; G.L. 1956, §§ 9-24-2 to 9-24-6; Repealed by P.L. 1965, ch. 55, § 42, effective January 10, 1966.

9-24-7. Appeals from interlocutory orders and judgments.

Whenever, upon a hearing in the superior court, an injunction shall be granted or continued, or a receiver appointed, or a sale of real or personal property ordered, by an interlocutory order or judgment, or a new trial is ordered or denied after a trial by jury, an appeal may be taken from such order or judgment to the supreme court in like manner as from a final judgment, and the appeal shall take precedence in the supreme court.

History of Section. C.P.A. 1905, § 337; P.L. 1906, ch. 1351, § 1; G.L. 1909, ch. 289, § 34; G.L. 1923, ch. 339, § 34; G.L. 1938, ch. 541, § 7; G.L. 1956, § 9-24-7 ; P.L. 1965, ch. 55, § 41.

NOTES TO DECISIONS

Certiorari.

Supreme court would grant certiorari from interlocutory ex parte order restraining police from generally enforcing antigambling statutes, even though contempt citation was pending, since irreparable injury in these exceptional circumstances would be suffered by the public in any long delay. Conte v. Roberts, 58 R.I. 353 , 192 A. 814, 1937 R.I. LEXIS 54 (1937).

Decrees After Final Decree.

An appeal would lie under this section from a decree for alimony entered after entry of final decree of divorce. Grattage v. Superior Court, 42 R.I. 546 , 109 A. 86, 1920 R.I. LEXIS 18 (1920).

Decrees Excluded.

This section by implication excluded appeals from types of interlocutory decrees not named. Hemenway v. Hemenway, 28 R.I. 85 , 65 A. 608, 1906 R.I. LEXIS 12 (1906).

Decree awarding interests in leases was not one of the types of interlocutory decrees which were referred to in this section. Joslin v. Astle, 56 R.I. 61 , 183 A. 637, 1936 R.I. LEXIS 75 (1936).

In a property owners’ suit to enjoin the city’s abandonment of streets and alleys, an order denying defendant’s motion to strike plaintiffs’ motion for a jury trial and assigning the case to determine whether the issues to be framed by plaintiffs were appropriate for jury trial, was not an interlocutory order or decree appealable under this section. Corrado v. City of Providence, 114 R.I. 691 , 337 A.2d 811, 1975 R.I. LEXIS 1472 (1975).

The grant of a petition to solicit bids for the purchase of property is not appealable under this section. Lincoln v. Cournoyer, 118 R.I. 644 , 375 A.2d 410, 1977 R.I. LEXIS 1504 (1977).

Appeals from interlocutory orders will not be permitted except for well-defined exceptions. De Maria v. Sabetta, 121 R.I. 648 , 402 A.2d 738, 1979 R.I. LEXIS 2046 (1979).

In an action which an attorney filed against a former client to recover attorney’s fees, the trial court’s orders denying the client’s motion for summary judgment and the client’s motion to dismiss the attorney’s complaint were interlocutory, and the supreme court did not have jurisdiction to hear the client’s appeal from those orders or any other orders the trial court issued. Fayle v. Traudt, 813 A.2d 58, 2003 R.I. LEXIS 7 (2003).

Summary judgment order is not one of the four specific types of appealable interlocutory orders listed in R.I. Gen. Laws § 9-24-7 . Furtado v. Laferriere, 839 A.2d 533, 2004 R.I. LEXIS 7 (2004).

In a personal injury case, an appeal from the denial of a motion to amend a complaint was not entertained on appeal because it did not fall within one of the statutory exceptions to the final judgment rule; the order did not grant or continue an injunction, appoint a receiver, order the sale of real or personal property, or order or deny a new trial after a jury trial. Moreover, the order did not appear likely to cause consequences that were imminent or that would have caused irreparable damage. Cayer v. Cox R.I. Telecom, LLC, 85 A.3d 1140, 2014 R.I. LEXIS 18 (2014).

Divorce Proceedings.

The rule in McAuslan v. McAuslan, 34 R.I. 462 , 83 A. 837 (1912), that the court will review a decree which, although in a strict sense interlocutory, has such an element of finality that the court will act before the case has finally terminated in order to prevent the possible injurious consequences, was not applied in divorce proceedings because of the evils that accompany piecemeal review of interlocutory orders entered in the course of those proceedings. Berberian v. Berberian, 109 R.I. 273 , 284 A.2d 72, 1971 R.I. LEXIS 1053 (1971).

Interlocutory decree of divorce enjoining husband from molesting and assaulting the petitioner at all times was not appealable. Berberian v. Berberian, 109 R.I. 273 , 284 A.2d 72, 1971 R.I. LEXIS 1053 (1971).

Although the way to obtain review of an order granting a preliminary injunction entered in the superior court was by appeal within twenty days following entry, where third party defendants in a divorce action filed a petition for certiorari to obtain such a review, the petition was read as if it were a claim of appeal since it was claimed within the twenty day time limit. Johnson v. Johnson, 111 R.I. 46 , 298 A.2d 795, 1973 R.I. LEXIS 1177 (1973).

A decree ordering receivers and commissioners to appoint two appraisers for property involved in a divorce action was not reviewable. Cavanagh v. Cavanagh, 118 R.I. 608 , 375 A.2d 911 (1977), but Family Court was without authority to order partition and sale of property while appeal was pending in Supreme Court. Cavanagh v. Cavanagh, 119 R.I. 479 , 380 A.2d 964, 1977 R.I. LEXIS 2054 (1977).

Finality of Proceeding.

Ordinarily, the interlocutory nature of an action below, without more, would prevent the Supreme Court from considering an appeal. An exception, judicial in origin, permits a review of a decree which, although in a strict sense interlocutory, has such an element of finality that the court will act before the case has finally terminated in order to prevent possible injurious consequences. Review in the latter situation, however, is by way of a discretionary writ of certiorari. In re Joseph J., 465 A.2d 150, 1983 R.I. LEXIS 1072 (1983).

Where a child’s foster parents bring an action in the family court seeking injunctive relief to prevent the department of children and their families from reuniting the child with his natural mother until there can be a hearing on their petition for adoption and the court determines that the foster parents lack standing and denies them relief, and the foster parents file an appeal, the Supreme Court will depart from its usual procedure and consider the appeal as a petition for certiorari in order to address the merits of the case, as the action of the court below has an element of finality. In re Joseph J., 465 A.2d 150, 1983 R.I. LEXIS 1072 (1983).

This section permits an appeanl to be taken from certain actions that are not otherwise considered final judgments. Sheer Asset Mgmt. Partners v. Lauro Thin Films, Inc., 731 A.2d 708, 1999 R.I. LEXIS 147 (1999).

Heir’s appeal of a partition order was not reviewable because the order did not fall within the statutory exception permitting appeals from interlocutory orders where it did not terminate the litigation, the parties’ respective interests had not yet been determined, claims remained outstanding, the order authorized the sale of the property, but did not actually order the sale, and the order not only continued a hearing on a motion to sell, but also invited offers to buy the property. Baker v. Mitchell, 79 A.3d 844, 2013 R.I. LEXIS 144 (2013).

Superior court’s order adopting the master’s report and implementing the master’s findings was not properly before the supreme court because the order was interlocutory; the order was not final but was merely an order confirming the master’s report and did not set forth the ultimate resolution of the parties’ disputes. Coit v. Tillinghast, 91 A.3d 838, 2014 R.I. LEXIS 81 (2014).

Injunctions.

Appeal may be taken from a decree, ancillary to divorce proceedings, which grants an injunction and appoints a receiver for property of the husband. Warren v. Warren, 36 R.I. 167 , 89 A. 651, 1914 R.I. LEXIS 10 (1914).

Stay of execution until determination of appeal was not an interlocutory decree of injunction from which an appeal lies. Boyden v. Boyden, 50 R.I. 326 , 147 A. 621, 1929 R.I. LEXIS 69 (1929).

Supreme court would only reverse and remand but not dismiss proceeding on bill to enjoin foreclosure of mortgage where it failed to set forth a prima facie case for preliminary injunction. McCullough v. Rhode Island Hosp. Trust Co., 54 R.I. 27 , 169 A. 276, 1933 R.I. LEXIS 9 (1933).

Defendant was entitled to appeal from a decree temporarily enjoining her from disposing of property until bill to set aside a deed of the property was determined. Wright v. Wright, 82 R.I. 67 , 105 A.2d 809, 1954 R.I. LEXIS 11 (1954).

An appeal from the grant of a preliminary injunction to enjoin utilization of self help in eviction proceedings was dismissed on appeal without prejudice as moot, since plaintiff had vacated the premises shortly after the entry of the preliminary injunction. Tamborelli v. Amazine, 113 R.I. 719 , 326 A.2d 857, 1974 R.I. LEXIS 1228 (1974).

This section did not encompass appeals from denial of preliminary injunctions. Montaquila v. St. Cyr, 120 R.I. 130 , 385 A.2d 673, 1978 R.I. LEXIS 644 (1978).

Since a preliminary injunction issued pursuant to Rule RCP 65 is appealable under this section; because it is appealable, such a preliminary injunction constitutes a judgment under Rule RCP 45, which defines “judgment” to include “any order from which an appeal lies”; and Rule RCP 58 requires that all judgments “be set forth on a separate document,” quite clearly a written preliminary injunction is contemplated by the rules and statutes as controlling over an oral injunctive order for purposes of assessment of conduct which is allegedly contumacious in violation of a preliminary injunction. State v. Eckert, 120 R.I. 560 , 389 A.2d 1234, 1978 R.I. LEXIS 705 (1978).

The grant of a preliminary injunction is appealable, but the denial of a preliminary injunction is not. Paramount Office Supply Co. v. D.A. MacIsaac, Inc., 524 A.2d 1099, 1987 R.I. LEXIS 460 (1987).

A petition for common-law certiorari is the proper method by which to seek review of the denial of a preliminary injunction. Paramount Office Supply Co. v. D.A. MacIsaac, Inc., 524 A.2d 1099, 1987 R.I. LEXIS 460 (1987).

Although a city could appeal a preliminary injunction under R.I.Gen.Laws § 9-24-7 , the matter was moot and the employees’ wrongful termination claims did not fall within any recognized exception for judicial review; as a result, the city’s appeal was denied and dismissed. Glavin v. City of Providence, 857 A.2d 758, 2004 R.I. LEXIS 93 (2004).

Because the evidence was not enough to show a likelihood of success on the merits, because there was a lack of evidence that any duty was breached by a lessor and tenant to an injured patron, a preliminary injunction, enjoining the sale of a property, should not have been granted. Vasquez v. Sportsman's Inn, Inc., 57 A.3d 313, 2012 R.I. LEXIS 164 (2012).

Motion for a New Trial.

Where the surgeon appealed the trial court’s order granting a new trial under R.I. Super. Ct. R. Civ. P. 59 in favor of the patient in the medical malpractice action, the reviewing court had jurisdiction over the matter pursuant to R.I. Gen. Laws § 9-24-7 . Franco v. Latina, 840 A.2d 1110, 2004 R.I. LEXIS 5 (2004).

Question Certified by Lower Court.

When, in the course of the proceedings, a question of law arises which in the opinion of the trial justice is of such doubt and importance and so affects the merits of the controversy that it ought to be determined by the Supreme Court, he should certify such question for the court’s determination. E-Con-O-Wash Corp. v. Sousa, 91 R.I. 450 , 164 A.2d 851, 1960 R.I. LEXIS 116 (1960).

Restraining Orders.

In a proceeding to enjoin foreclosure of a mortgage, an appeal can be taken from an order continuing the cause for hearing on the prayer for preliminary injunction and continuing the restraining order theretofore issued. McCullough v. Rhode Island Hosp. Trust Co., 54 R.I. 27 , 169 A. 276, 1933 R.I. LEXIS 9 (1933).

An order releasing a restraining order as against a safe-deposit vault was not an order from which appeal could be taken under this section. Ross v. Mencoff, 82 R.I. 461 , 111 A.2d 356, 1955 R.I. LEXIS 94 (1955).

Where respondent filed motion to dismiss a bill in equity for injunctive and affirmative relief against violation of restriction imposed by deed to all purchasers of lots in real estate development, and such motion was denied without prejudice, it was not a decree granting or continuing an injunction as would support an immediate appeal. Coen v. Corr, 90 R.I. 185 , 156 A.2d 406, 1959 R.I. LEXIS 134 (1959).

Sale of Property.

This section does not apply to orders for the sale of property which are in fact final rather than interlocutory. McQuillan v. McQuillan, 35 R.I. 373 , 87 A. 167, 1913 R.I. LEXIS 45 (1913).

Since this section (prior to 1965 amendment) set out the time for appeal from an interlocutory decree for sale of property, the supreme court did not have the authority to say that such a decree had an element of finality that justified extending the time. Taber v. West Shore Golf Club, 51 R.I. 390 , 155 A. 349, 1931 R.I. LEXIS 60 (1931).

Where the defendants failed to establish either that the interlocutory support order would require a sale of stock within the meaning of this section or that obedience to the order would produce injurious consequences, the order was not appealable. Raymond v. Raymond, 120 R.I. 114 , 385 A.2d 126, 1978 R.I. LEXIS 635 (1978).

Partial summary judgment in a foreclosure action was appealable under the exception in this section that allows an interlocutory appeal when a sale of real property is ordered, because a judgment authorizing a mortgagee to exercise its remedies could be interpreted as ordering such a sale. Note Capital Grp., Inc. v. Perretta, 207 A.3d 998, 2019 R.I. LEXIS 74 (2019).

Time for Appeal.

An appeal of church members from a superior court order sustaining objections to report of a church officer in pending litigation more than ten days after the order was entered conferred no jurisdiction upon the court (under ten day time limitation which was eliminated by 1965 amendment). Redfern v. Church of Mediator, 101 R.I. 182 , 221 A.2d 453, 1966 R.I. LEXIS 372 (1966).

A strictly interlocutory decree may be immediately reviewed when the decree has consequences sufficiently serious so that it can be said to possess an element of finality for review purposes, and the perceived injury must be shown to be clearly imminent and irreparable. De Maria v. Sabetta, 121 R.I. 648 , 402 A.2d 738, 1979 R.I. LEXIS 2046 (1979).

Collateral References.

Appealability of interlocutory or pendente lite order for temporary child custody. 82 A.L.R.5th 389.

Appealability of order appointing, or refusing to appoint, receiver. 72 A.L.R.2d 1009.

Appealability of order discharging, or vacating appointment of, or refusing to discharge, or vacate appointment of, receiver. 72 A.L.R.2d 1075.

9-24-8. Supreme court orders for protection of parties pending appeal.

After an appeal has been entered in the supreme court, the court may make such orders as are needful to protect the rights of the parties pending the appeal, and orders for continuing, modifying, or annulling orders provisionally made by the superior court.

History of Section. C.P.A. 1905, § 334; G.L. 1909, ch. 289, § 31; G.L. 1923, ch. 339, § 31; G.L. 1938, ch. 544, § 1; G.L. 1956, § 9-24-8 .

9-24-9. Summons of additional parties on appeal or certification.

The supreme court, in any cause pending before it on appeal or certification, may order any person having an interest in the subject matter, not a party to the cause, to be summoned in and made a party thereto.

History of Section. C.P.A. 1905, § 340; G.L. 1909, ch. 289, § 37; G.L. 1923, ch. 339, § 37; G.L. 1938, ch. 544, § 4; G.L. 1956, § 9-24-9 .

9-24-10. New evidence on appeal.

No new testimony shall be presented to the supreme court on appeal, but in case of accident or mistake, or erroneous ruling excluding evidence in the superior court, the supreme court may grant leave to parties to present further evidence, and may provide by general rule or special order for the taking of such evidence.

History of Section. C.P.A. 1905, § 333; G.L. 1909, ch. 289, § 30; G.L. 1923, ch. 339, § 30; G.L. 1938, ch. 541, § 6; G.L. 1956, § 9-24-10 .

NOTES TO DECISIONS

Argument.

Argument based on an assertion as to the contents of a deed could not be considered where the deed was not introduced in evidence on trial. Rotondo v. Geremia, 45 R.I. 378 , 122 A. 680, 1923 R.I. LEXIS 84 (1923).

Effect of Other Evidence.

Supreme court would not remand for admission of erroneously excluded evidence where other evidence sufficiently proved the point in favor of the party offering the excluded evidence. Murphy v. Duffy, 46 R.I. 210 , 124 A. 103, 1924 R.I. LEXIS 33 (1924).

Premature Decree.

Where a decree was entered before the party in whose favor the decree was entered had closed her case or presented all her evidence, the supreme court remanded for completion of the evidence and a new decree. Rhode Island Hosp. Trust Co. v. Gilleney, 61 R.I. 23 , 199 A. 691, 1938 R.I. LEXIS 19 (1938).

Reversal of Decree.

Supreme court denied leave to present further evidence after reversal of decree of dismissal where the record indicated that appellee had introduced all the evidence he wanted in trial court and where trial judge indicated that reversal would not necessitate retrial. Shepard v. Springfield Fire & Marine Ins. Co., 42 R.I. 174 , 105 A. 576, 1919 R.I. LEXIS 14 (1919).

Special Order of Court.

In granting leave for new evidence to be used in the supreme court, such court in each case will make such special order as appears to be appropriate in the circumstances. Haynes v. Greene, 48 R.I. 38 , 134 A. 853, 1926 R.I. LEXIS 10 (1926).

9-24-11. Hearing and determination of appeals.

Upon any cause being brought by appeal to the supreme court, that court shall hear and determine the appeal and affirm, reverse, or modify the decree or judgment appealed from, and make such orders and decrees therein as shall be just.

History of Section. C.P.A. 1905, § 335; G.L. 1909, ch. 289, § 32; G.L. 1923, ch. 339, § 32; G.L. 1938, ch. 544, § 2; G.L. 1956, § 9-24-11 .

Cross References.

Costs on appeal, § 9-22-20 .

Costs on appeal to delay, § 9-22-16 .

NOTES TO DECISIONS

In General.

The supreme court customarily and generally makes a final determination of a cause in equity heard by it upon an appeal, but it may in unusual cases remand such causes for new trial. Rhode Island Hosp. Trust Co. v. Gilleney, 61 R.I. 23 , 199 A. 691, 1938 R.I. LEXIS 19 (1938).

The Supreme Court will not disturb the findings of fact of a superior court justice sitting without a jury unless it is shown that he was clearly wrong or that he misconceived or overlooked material evidence on a controlling issue. Duffy v. Mollo, 121 R.I. 480 , 400 A.2d 263, 1979 R.I. LEXIS 1802 (1979).

Mistake of Law.

If the trial court’s decision is correct, it is not germane that the conclusion was reached through faulty reasoning or a mistake of law, and it is well settled that an order or judgment that is correct notwithstanding the erroneous reasoning upon which it rests will be sustained. Souza v. O'Hara, 121 R.I. 88 , 395 A.2d 1060, 1978 R.I. LEXIS 763 (1978).

9-24-12. Remand after decision on appeal — Further proceedings.

Upon reversal or modification of the decree or judgment appealed from, the supreme court may remand the cause to the superior court with such directions as are necessary and proper, or may take such further proceedings in the cause as justice and the speedy determination of the cause may require, and after the proceedings shall remand the cause. In any such case, the supreme court, if practicable, shall determine the form of the final decree or judgment before remanding the cause to the superior court. In case the supreme court shall affirm the decree or judgment appealed from, it shall certify its affirmation and remand the cause to the superior court for further proceedings. In every case, the supreme court, upon remanding a cause to the superior court, shall transmit all the papers in the cause to the superior court, and the final decree or judgment shall be entered in the superior court.

History of Section. C.P.A. 1905, § 336; G.L. 1909, ch. 289, § 33; G.L. 1923, ch. 339, § 33; G.L. 1938, ch. 544, § 3; G.L. 1956, § 9-24-12 .

NOTES TO DECISIONS

Remand Approved.

Where a decree was entered before the party in whose favor the decree was entered had closed her case or presented all her evidence, the supreme court remanded for completion of the evidence and a new decree. Rhode Island Hosp. Trust Co. v. Gilleney, 61 R.I. 23 , 199 A. 691, 1938 R.I. LEXIS 19 (1938).

In an action by a chemical company for injunctive and declaratory relief on claims that a former employee violated a noncompetition agreement by consulting with a competing company, remand was ordered of the former employee’s appeal of a superior court order declaring that any work for competing chemical companies violated the agreement. The superior court’s interpretation was in conflict with provisions of the agreement allowing work on some product lines and it needed to determine: (1) whether the former employee’s work with the competing company was explicitly permitted by the noncompetition agreement; (2) whether it was the type of work that was prohibited under the agreement; and (3) whether the agreement was overall unreasonable because it lacked both temporal and geographic limitations. Cranston Print Works Co. v. Pothier, 848 A.2d 213, 2004 R.I. LEXIS 77 (2004).

Remand Denied.

After supreme court had reversed decree dismissing bill at conclusion of complainants’ testimony, the cause would not be remanded for new trial where respondents were not prevented by superior court from introducing all the evidence they saw fit to offer and where a retrial would cause complainants unwarranted expense and delay. Shepard v. Springfield Fire & Marine Ins. Co., 42 R.I. 174 , 105 A. 576, 1919 R.I. LEXIS 14 (1919).

Supplementing Appellate Record.

Where the supreme court found the superior court erred in dismissing an appeal from a platting board of review because dedication of a 50-foot strip to give the subdivision access to a highway was presented to the board but not filed in the land records, the supreme court stayed approval of the plat until the subdivider should supplement the record by filing with the clerk of the supreme court evidence that there had been a dedication of the 50-foot strip effectively protecting the public interest therein. Jeffrey v. Platting Bd. of Review, 103 R.I. 578 , 239 A.2d 731, 1968 R.I. LEXIS 833 (1968).

9-24-13 — 9-24-15. Repealed.

History of Section. C.P.A. 1905, §§ 481-483; G.L. 1909, ch. 298, §§ 8-10; G.L. 1923, ch. 348, §§ 8-10; P.L. 1929, ch. 1336, § 1; G.L. 1938, ch. 542, §§ 1-3; P.L. 1965, ch. 55, § 41; Repealed by P.L. 1972, ch. 169, § 11.

Compiler’s Notes.

Former §§ 9-24-13 — 9-24-15 concerned exceptions.

9-24-16. Notice to parties of decisions.

The clerk shall give immediate notice to the parties, or to their attorneys of record, of final decisions in causes heard by the court without a jury, of decisions upon motions for a new trial and in arrest of judgment, and of decisions upon all interlocutory matters, in such manner as the court shall by general rule or special order prescribe; provided, that if any such decision shall be rendered immediately upon the close of a hearing, the notice shall not be required.

History of Section. C.P.A. 1905, § 484; G.L. 1909, ch. 298, § 11; P.L. 1909, ch. 426, § 1; G.L. 1923, ch. 348, § 11; G.L. 1938, ch. 542, § 4; G.L. 1956, § 9-24-16 .

Rules of Court.

Notice by clerk of orders or judgments, see Super. Ct. R. Civ. P. Rule 77(d).

9-24-17 — 9-24-24. Repealed.

History of Section. Sections 9-24-17 , 9-24-18, and 9-24-20 — 9-24-24 (C.P.A. 1905, §§ 490-495, 497; P.L. 1907, ch. 1460, § 1; G.L. 1909, ch. 298, §§ 17-22, 24; P.L. 1921, ch. 2086, §§ 1-4; G.L. 1923, ch. 348, §§ 17-22, 24; P.L. 1929, ch. 1403, § 2; G.L. 1938, ch. 542, §§ 5-10, 12; P.L. 1956, ch. 3752, § 2; G.L. 1956, §§ 9-24-17 , 9-24-18, 9-24-20 — 9-24-24; P.L. 1965, ch. 55, § 41; Repealed by P.L. 1972, ch. 169, § 11. Section 9-24-19 (G.L., ch. 348, § 25, as enacted by P.L. 1931, ch. 1802, § 1; G.L. 1938, ch. 542, § 13; G.L. 1956, § 9-24-19; Repealed by P.L. 1965, ch. 55, § 42.

Compiler’s Notes.

Former §§ 9-24-17 , 9-24-18, and 9-24-20 to 9-24-24 concerned various provisions regarding exceptions. Former § 9-24-19 concerned exceptions to decisions allowing remittitur.

9-24-25. Certification to supreme court on agreed statement of facts.

Whenever any civil action, legal or equitable in character, is pending in a district court or in a superior court, and the parties shall file in the clerk’s office an agreed statement of facts in the action, the court shall certify the action to the supreme court to be there heard and determined. After having decided the action, the supreme court shall send back the papers therein, with its decision certified thereon, to the court from which the action was certified, which shall enter final judgment upon the decision.

History of Section. C.P.A. 1905, § 477; G.L. 1909, ch. 298, § 4; G.L. 1923, ch. 348, § 4; G.L. 1938, ch. 545, § 4; G.L. 1956, § 9-24-25 ; P.L. 1965, ch. 55, § 41.

Cross References.

Review of decisions of commissioner of education on agreed statement of facts, § 16-39-4 .

NOTES TO DECISIONS

Applicability.

Although, under this section, when the parties in an action have filed an agreed statement of facts the District or Superior Court is required to certify the question to the Supreme Court, certified questions should not be used as a means of short-circuiting the proper procedure for resolving matters in controversy, especially when the question is not so obscure or enigmatic as to preclude its successful resolution by the trial court. Employers Mut. Casualty Co. v. Martin, 671 A.2d 798, 1996 R.I. LEXIS 65 (1996).

Criminal Cases.

This section did not apply to a criminal case in which an agreed statement was filed in superior court. State v. Big Chief Corp., 64 R.I. 448 , 13 A.2d 236, 1940 R.I. LEXIS 62 (1940).

Failure to Move for Certification.

Where, after the filing of an agreed statement of facts in superior court, neither party filed a motion for certification to the supreme court and plaintiff, after judgment for the defendant, filed a motion to vacate the judgment and certify the case to the supreme court for decision, compliance with R.C.P. Rule 72(a) was a condition precedent to certification under this section and, in the absence of the required motion by the parties, the jurisdiction and responsibility to decide the questions raised by the agreed statement of facts remained in the superior court. Merlino v. Tax Assessors, 114 R.I. 630 , 337 A.2d 796, 1975 R.I. LEXIS 1465 (1975).

Form.

The court accepted certification for hearing and determination on an agreed statement of facts under this section as moved by the plaintiff in the lower court, although the case arrived under a consent order which certified three stated questions under § 9-24-27 , because of the extreme public interest, but stated that failure to reject the improper certification was not precedential. North Kingstown v. North Kingstown Teachers Ass'n, 110 R.I. 698 , 297 A.2d 342, 1972 R.I. LEXIS 969 (1972).

Jurisdiction to Certify.

A cause should be certified under this section only upon the motion of a party pursuant to R.C.P Rule 72(a). Nunes v. Bristol, 102 R.I. 729 , 232 A.2d 775, 1967 R.I. LEXIS 745 (1967).

Where, after the filing of an agreed statement of facts in superior court, neither party filed a motion for certification to the superior court pursuant to this section, as required by R.C.P. Rule 72(a), the superior court was not required by R.C.P. Rule 72(b) to certify the case on its own motion. Merlino v. Tax Assessors, 114 R.I. 630 , 337 A.2d 796, 1975 R.I. LEXIS 1465 (1975).

Omission of Material Facts.

Supreme court remitted without any decision where the agreed statement failed to include agreement on facts deemed essential by two of the four justices sitting. Macisaac v. John Hancock Mut. Life Ins. Co., 60 R.I. 40 , 197 A. 103, 1938 R.I. LEXIS 103 (1938).

Where the parties could not agree on a material fact, the action should not have been certified and the supreme court would not render an opinion. Reynolds v. New York Life Ins. Co., 68 R.I. 211 , 27 A.2d 180, 1942 R.I. LEXIS 56 (1942).

Oral Statement.

An oral statement of facts could not be certified to the supreme court under this section. Scotti v. District Court of Tenth Judicial Dist., 42 R.I. 556 , 109 A. 207, 1920 R.I. LEXIS 20 (1920).

Superior Court Jurisdiction.

Superior court could not determine a probate appeal on an agreed statement of facts since same should be certified to supreme court. Whitford, Bartlett & Co. v. Townsend, 32 R.I. 392 , 79 A. 960, 1911 R.I. LEXIS 44 (1911).

Fact that superior court made a decision indicates that proceeding in which an “agreed statement of facts” was filed was not intended as a proceeding under this section. W. P. Hamblin, Inc. v. Sprague, 50 R.I. 99 , 145 A. 307, 1929 R.I. LEXIS 23 (1929).

9-24-26. Repealed.

History of Section. C.P.A. 1905, § 339; G.L. 1909, ch. 289, § 36; G.L. 1923, ch. 339, § 36; G.L. 1938, ch. 545, § 5; G.L. 1956, § 9-24-26 ; Repealed by P.L. 1965, ch. 55, § 42, effective January 10, 1966.

Compiler’s Notes.

Former § 9-24-26 concerned certification of interlocutory question by superior court.

9-24-27. Certifications of questions of importance to the supreme court.

Whenever in any proceedings, civil or criminal, legal or equitable, in the superior court or in any district court, any question of law shall arise or the constitutionality of an act of the general assembly shall be brought in question upon the record, which, in the opinion of the court, or in the opinion of the attorney general if the state is a party to the proceeding or if he or she has intervened therein, is of such doubt and importance and so affects the merits of the controversy that it ought to be determined by the supreme court before further proceedings, the court in which the cause is pending shall certify the question or motion to the supreme court for that purpose and stay all further proceedings until the question is heard and determined; provided, that no question shall be so certified in any criminal case where the defendant has not been released on bail.

History of Section. C.P.A. 1905, § 478; G.L. 1909, ch. 298, § 5; P.L. 1915, ch. 1258, § 4; G.L. 1923, ch. 348, § 5; G.L. 1938, ch. 545, § 6; P.L. 1940, ch. 941, § 2; G.L. 1956, § 9-24-27 ; P.L. 1965, ch. 55, § 41.

Rules of Court.

For rule governing certification under this section, see Article I, Rule 6 of the Supreme Court Rules.

NOTES TO DECISIONS

Appeal.

Supreme court would not on appeal determine a question on which there was no real controversy between the parties and which could have been certified under this section. DiPrete v. Vallone, 70 R.I. 286 , 38 A.2d 769, 1944 R.I. LEXIS 58 (1944).

Constitutionality could not be considered on an appeal based on the ground that verdict was against the law, since constitutionality must be specially pleaded and certified to supreme court for decision. State v. Smith, 35 R.I. 282 , 86 A. 890, 1913 R.I. LEXIS 32 (1913) (decided under former § 12-22-10 ).

Attorney-General.

Under this section the attorney-general may obtain the certification of questions of such pressing public interest and importance that they should be decided without the necessity of awaiting the outcome of pending litigation, for the supreme court’s determination, in which case the court would have the benefit of briefs and arguments by adversary counsel and its determination would not be a mere advisory opinion, but a binding decision having the force and effect of law. Opinion to Governor, 88 R.I. 392 , 149 A.2d 341, 1959 R.I. LEXIS 24 (1959); Opinion to House of Representatives, 88 R.I. 396 , 149 A.2d 343, 1959 R.I. LEXIS 25 (1959).

Certification Pre-Empted.

Where the questions certified under this section were resolved by a decision of the Supreme Court of the United States in other cases before the certified questions could be considered by the Supreme Court of Rhode Island, the court declined to answer the questions and remitted the case to the superior court for reconsideration on the basis of the United States Supreme Court decisions. State v. MacTavish, 106 R.I. 630 , 262 A.2d 383, 1970 R.I. LEXIS 965 (1970).

Consideration by Trial Court.

Certification may be made only if after careful consideration, assisted by argument and briefs of counsel, the trial justice is still unable to decide the question. Tillinghast v. Johnson, 34 R.I. 136 , 82 A. 788, 1912 R.I. LEXIS 34 (1912); Murray v. Taylor, 43 R.I. 5 , 109 A. 565, 1920 R.I. LEXIS 22 (1920); Easton v. Fessenden, 63 R.I. 11 , 6 A.2d 714, 1939 R.I. LEXIS 53 (1939); State v. Flynn, 100 R.I. 520 , 217 A.2d 432, 1966 R.I. LEXIS 471 (1966).

Where certification pursuant to this section appeared to be motivated by a desire of the parties to reach promptly a final decision by the supreme court rather than by the inability of the trial court to resolve a legal question, the supreme court declined response to the certified questions and remanded the case. Richardson v. Bevilacqua, 115 R.I. 49 , 340 A.2d 118, 1975 R.I. LEXIS 1117 (1975).

Although, under § 9-24-25 , when the parties in an action have filed an agreed statement of facts the District or Superior Court is required to certify the question to the Supreme Court, certified questions should not be used as a means of short-circuiting the proper procedure for resolving matters in controversy, especially when the question is not so obscure or enigmatic as to preclude its successful resolution by the trial justice. Employers Mut. Casualty Co. v. Martin, 671 A.2d 798, 1996 R.I. LEXIS 65 (1996).

Consideration Without Regard to Facts.

Supreme court would not consider constitutional question on all possible set facts but only as such question was presented on the record. State v. Smith, 56 R.I. 168 , 184 A. 494, 1936 R.I. LEXIS 90 (1936).

In considering constitutional question supreme court was not concerned with issues of fact but only with the question as certified and as germane to the real issues. Creditors' Serv. Corp. v. Cummings, 57 R.I. 291 , 190 A. 2, 1937 R.I. LEXIS 101 (1937).

In considering doubtful questions certified under this section, the supreme court must pass only upon the questions presented without reference to the circumstances out of which the case arose. State v. Fowler, 79 R.I. 16 , 83 A.2d 67, 1951 R.I. LEXIS 3 (1951).

Constitutional Questions.
— Bringing on the Record.

Certification should not be made of a constitutional question until it has been brought formally upon the record. Carroll v. Chrupcala, 53 R.I. 11 , 162 A. 852, 1932 R.I. LEXIS 100 (1932).

Defendant in criminal case could not, under prior law (G.L. 1938, ch. 545, § 1), raise constitutional question by motion to certify such question, after he had pleaded to the complaint, without having first raised the question in some formal pleading. State v. Hartman, 65 R.I. 174 , 14 A.2d 18, 1940 R.I. LEXIS 97 (1940).

The supreme court will not pass upon the constitutionality of an act of the general assembly unless the matter is brought in question upon the record with clarity and particularity. Ravenelle v. Woonsocket, 73 R.I. 270 , 54 A.2d 376, 1947 R.I. LEXIS 69 (1947).

A notation appearing on the face of the complaint that the district court refused “to certify to supreme court the motion of defendant to have act declared unconstitutional” standing alone is obviously inadequate to raise on the record a specific constitutional question in the courts of this state. Mailey v. Estate of De Pasquale, 94 R.I. 31 , 177 A.2d 376, 1962 R.I. LEXIS 22 (1962).

To raise a constitutional question within the purview of the certification statutes the question must be raised on the record with clarity and particularity and cannot be raised off the record in an informal manner. Mailey v. Estate of De Pasquale, 94 R.I. 31 , 177 A.2d 376, 1962 R.I. LEXIS 22 (1962).

Ordinarily to raise a constitutional question, such question is required to be raised upon the record through a formal demurrer, plea in abatement, or a motion to quash the complaint. Mailey v. Estate of De Pasquale, 94 R.I. 31 , 177 A.2d 376, 1962 R.I. LEXIS 22 (1962) (decided under former § 12-22-10 ).

Constitutional questions must be raised on the record with particularity and clarity in order to be certified to the supreme court for decision. State ex rel. Widergren v. Charette, 110 R.I. 124 , 290 A.2d 858, 1972 R.I. LEXIS 888 (1972).

— Case Determinable on Other Issues.

Supreme court would not consider a certified question as to the constitutionality of a statute conferring power to pass regulations until the trial court had determined whether the particular regulation involved was authorized by the terms of the statute. State v. Goldberg, 61 R.I. 461 , 1 A.2d 101, 1938 R.I. LEXIS 81 (1938).

Supreme court would not determine a constitutional question where such determination would not settle the case and where other issues might determine the case without the necessity of relying on the constitutional question. Lonsdale Co. v. Providence, 63 R.I. 28 , 7 A.2d 201, 1939 R.I. LEXIS 63 (1939).

Constitutionality of an ordinance would not be determined until it was determined that such ordinance fell within the terms of the enabling statute. Victory Land Co. v. Halliday, 65 R.I. 143 , 13 A.2d 808, 1940 R.I. LEXIS 91 (1940).

— Certiorari.

Certiorari was granted to bring up a constitutional question in a case where it was contended that the repeal of the prior law (G.L. 1938, ch. 545, § 1) for the mandatory certification of constitutional questions was itself unconstitutional. State v. Fay, 65 R.I. 304 , 14 A.2d 799, 1940 R.I. LEXIS 126 (1940).

Where the attorney-general opposes certiorari to compel the certification of a constitutional question, criminal defendants may not urge in support of certiorari that public policy requires certification in order to save the state needless trial expense. State v. Paradis, 66 R.I. 152 , 18 A.2d 342, 1941 R.I. LEXIS 20 (1941).

— Decision by Trial Court.

By the 1940 amendment of this section and repeal of G.L. 1938, ch. 545, § 1, the supreme court was deprived of exclusive original jurisdiction of constitutional questions and the superior court was empowered, even in civil cases, to make initial determinations on constitutional questions. Allen v. Rhode Island State Bd. of Veterinarians, 72 R.I. 372 , 52 A.2d 131, 1947 R.I. LEXIS 19 (1947).

— Discretion as to Certification.

Under prior law (G.L. 1938, ch. 545, § 1) when constitutionality of any statute was questioned by the pleadings, the superior court had no discretion but to certify the question and the supreme court would determine whether it could properly consider the question. Brosco v. Frost, 63 R.I. 1 , 6 A.2d 705, 1939 R.I. LEXIS 52 (1939).

Where the trial court, acting under its discretionary powers, denies a motion to certify a constitutional question for immediate determination, such question is automatically raised if bill of exceptions or appeal is later taken to the supreme court. Greenough v. Tax Assessors, 71 R.I. 477 , 47 A.2d 625, 1946 R.I. LEXIS 26 (1946), aff'd, 331 U.S. 486, 67 S. Ct. 1400, 91 L. Ed. 1621, 1947 U.S. LEXIS 2878 (1947).

— — Mandamus.

Mandamus would lie to compel the certification of a constitutional question under prior law (G.L. 1938, ch. 545, § 1). Brosco v. Frost, 63 R.I. 1 , 6 A.2d 705, 1939 R.I. LEXIS 52 (1939).

— Effect on Defendants’ Constitutional Rights.

Court will not pass upon the constitutionality of a statute under the certification statute unless it directly and adversely impinges upon some constitutionally protected right of the defendant, nor will it pass upon the constitutionality of a statute in cases where, if the statute were found to be unconstitutional, the defendant would gain nothing thereby. State ex rel. Widergren v. Charette, 110 R.I. 124 , 290 A.2d 858, 1972 R.I. LEXIS 888 (1972).

— Form of Question.

Under prior law (G.L. 1938, ch. 545, § 1) constitutional questions were not required to be in interrogatory form. Blais v. Franklin, 30 R.I. 413 , 75 A. 399, 1910 R.I. LEXIS 24 (1910).

Under prior law (G.L. 1938, ch. 545, § 1) constitutional question was required to be certified in the form in which it was raised by the record. Blais v. Franklin, 30 R.I. 413 , 75 A. 399, 1910 R.I. LEXIS 24 (1910).

Questions of constitutionality must clearly show what portion of what section is claimed to be unconstitutional. Carroll v. Chrupcala, 53 R.I. 11 , 162 A. 852, 1932 R.I. LEXIS 100 (1932).

Under prior law (G.L. 1938, ch. 545, § 1) supreme court would consider constitutional questions as reframed by trial court where the party raising the questions did not object. State v. Brosco, 63 R.I. 389 , 8 A.2d 911, 1939 R.I. LEXIS 99 (1939).

Unless the questions certified by the trial court for hearing by the supreme court stated separately and in clear and direct language which specific section of the article, section, and clause of the Constitution was violated, they did not meet the certainty requirement of this section and portions of those questions relating to these provisions were not entitled to answer. Jerome v. Pratt, 111 R.I. 56 , 298 A.2d 806, 1973 R.I. LEXIS 1178 (1973).

— Objections to Certification.

Objection to certification of constitutional issue could not be raised on bill of exceptions, but would be considered at the hearing on the constitutional issue. Manufacturers' Mut. Fire Ins. Co. v. Clarke, 40 R.I. 241 , 100 A. 400, 1917 R.I. LEXIS 27 (1917).

— Ordinances.

Prior law (G.L. 1938, ch. 545, § 1) requiring certification of constitutional questions did not apply to a question as to the constitutionality of an ordinance. Victory Land Co. v. Halliday, 65 R.I. 143 , 13 A.2d 808, 1940 R.I. LEXIS 91 (1940).

Before certifying a question involving a town ordinance to the supreme court under this section, a lower court must first determine that the town council has authority from the general assembly to legislate on the matter addressed in the ordinance. If the court decides that there was no authority, then the ordinance is void for that reason and the question of constitutionality need not be reached. Barrington v. Blake, 532 A.2d 955, 1987 R.I. LEXIS 554 (1987).

— Sufficiency of Proceedings.

Although doubtful whether proceedings in action to enjoin enforcement of statute were sufficient, supreme court would hear constitutional questions, since sufficiency was not questioned by demurrer or motion to dismiss and questions had been fully argued. Creditors' Serv. Corp. v. Cummings, 57 R.I. 291 , 190 A. 2, 1937 R.I. LEXIS 101 (1937).

— Time of Certification.

Question of constitutionality raised by bill could be certified without waiting for further pleadings. Blais v. Franklin, 30 R.I. 413 , 75 A. 399, 1910 R.I. LEXIS 24 (1910).

— Withdrawal of Question.

Supreme court remanded for trial on the merits when defendant who had raised issue of constitutionality by special plea agreed to withdraw special plea and stand trial on plea of general issue. Berberian v. Jordan, 80 R.I. 34 , 81 R.I. 34 , 98 A.2d 824, 1953 R.I. LEXIS 7 (1953).

Construction of Will or Deed.

Questions arising after the trial of a bill in equity for the construction of a deed may not be certified under this section but must be certified under former § 9-24-28 . Bristol v. Nolan, 72 R.I. 460 , 53 A.2d 466, 1947 R.I. LEXIS 34 (1947).

Supreme court would accept certification under this section of a question as to the construction of a will where the complexity of the issues made advisable the determination of the question before trial. Smith v. Powers, 83 R.I. 415 , 117 A.2d 844, 1955 R.I. LEXIS 77 (1955).

Courts Authorized to Certify.

There is no provision in the general laws authorizing a probate court to certify any doubtful question of law to the supreme court for determination. In re Rathbun, 43 R.I. 173 , 110 A. 649, 1920 R.I. LEXIS 62 (1920).

Section 8-10-43 makes this section applicable to the family court, at least when exercising juvenile jurisdiction. In re Correia, 104 R.I. 251 , 243 A.2d 759, 1968 R.I. LEXIS 641 (1968).

Mere reluctance of trial justice to resolve a question does not warrant certification but if he entertains a serious doubt as to how an issue should be resolved he may invoke statutes such as § 12-22-10 (since repealed) and this section and certify question to the supreme court only when he is unable to reach a satisfactory conclusion after careful consideration aided by the research and arguments of counsel. State v. Walsh, 108 R.I. 518 , 277 A.2d 298, 1971 R.I. LEXIS 1299 (1971); State ex rel. Widergren v. Charette, 110 R.I. 124 , 290 A.2d 858, 1972 R.I. LEXIS 888 (1972).

Section 8-10-43 authorizes Family Court justices, like their Superior and District Court counterparts, to certify questions to the state Supreme Court where those questions so affect the merits of the controversy that they ought to be determined by that court prior to further proceedings. Rubano v. DiCenzo, 759 A.2d 959, 2000 R.I. LEXIS 182 (2000).

Decision by Trial Court.

Certified question was refused where trial court had already made a decision on the doubtful question and where the moving party could have prosecuted an immediate bill of exceptions. Broad St. Motors v. Mathews, 55 R.I. 502 , 183 A. 142, 1936 R.I. LEXIS 6 (1936).

Question which had been decided by district court judge could not be certified. Brady v. Moreau, 65 R.I. 469 , 16 A.2d 329, 1940 R.I. LEXIS 137 (1940).

By ruling on the merits of defendant’s motion to dismiss any information on grounds that section under which he was charged was vague, the trial justice precluded determination of the same issue pursuant to this section. State v. Phillips, 430 A.2d 1061, 1981 R.I. LEXIS 1171 (1981).

Declaratory Judgment Proceedings.

Although this section may have been intended to be limited to those proceedings in which a trial on the merits is inherent and not apply to declaratory judgment proceedings, where superior court, of its own volition, certified question of meaning of former § 13-2-44 in declaratory judgment proceeding in which the liberty or unlawful detention of plaintiff was basic issue, the supreme court was disposed to answer the question. Rondoni v. Sherman, 90 R.I. 322 , 158 A.2d 267, 1960 R.I. LEXIS 26 (1960).

Although the supreme court might consider questions which involve grave questions of public concern the legislature did not intend to permit a combining of petitions under the Declaratory Judgment Act with certification under this section, and, therefore, the court declares that they will not hereafter entertain certification of questions under this section in proceedings commenced under the Declaratory Judgment Act. Sweeney v. Notte, 95 R.I. 68 , 183 A.2d 296, 1969 R.I. LEXIS 880 (1969).

Dependence on Questions of Fact.

Question raised by plea should not have been certified where the effect of the matters alleged in the plea would depend upon other facts as to which evidence would have to be received. State v. Karagavoorian, 32 R.I. 477 , 79 A. 1111, 1911 R.I. LEXIS 56 (1911).

A justice before certifying question must make a finding on the facts upon which the question is based. Tillinghast v. Johnson, 34 R.I. 136 , 82 A. 788, 1912 R.I. LEXIS 34 (1912).

Where the trial court framed a question as based on a hypothetical set of facts and there was evidence tending to prove such facts, the supreme court considered such question. Prescott v. Kelley, 52 R.I. 45 , 157 A. 198, 1931 R.I. LEXIS 101 (1931).

Doubt and Importance.

A motion in the superior court to dismiss for want of jurisdiction did not present a question of such doubt and importance as to require certification under this section. Poirier v. Quinn, 83 R.I. 98 , 113 A.2d 642, 1955 R.I. LEXIS 20 (1955).

Effect on Merits.

Supreme court would not decide a question as to the power of the superior court to approve a compromise on behalf of an infant since such question did not affect the merits of the controversy but rather involved the propriety of a disposition which would render the merits of no consequence. Rhode Island Hosp. Trust Co. v. Davis, 68 R.I. 461 , 29 A.2d 647, 1942 R.I. LEXIS 95 (1942).

Form of Certification.

Supreme court would determine question involved, though question was not stated in certificate, where it was reasonably clear what question was involved, but without any intention to set a precedent. United States Trust Co. v. Tax Assessors, 47 R.I. 420 , 133 A. 802, 1926 R.I. LEXIS 75 (1926).

The court accepted certification for hearing and determination on an agreed statement of facts under § 9-24-25 as moved in the lower court, although the case arrived under a consent order which certified three stated questions under this section, because of the extreme public interest, but stated that the failure to reject the improper certification was not precedential. North Kingstown v. North Kingstown Teachers Ass'n, 110 R.I. 698 , 297 A.2d 342, 1972 R.I. LEXIS 969 (1972).

Improper Certification.

Where defendant’s exception to the trial court’s charge prescribed for supreme court’s consideration the very question of constitutionality of § 12-17-14 , to which he sought answer, the question was improperly certified as a question of importance under this section. State v. Walsh, 108 R.I. 518 , 277 A.2d 298, 1971 R.I. LEXIS 1299 (1971).

Although certification was not the proper means to raise the question, since violation of a basic constitutional right was alleged, the court on appeal considered the question, rather than have defendant return to the court by the circuitous route of post-conviction relief. State v. Walsh, 113 R.I. 118 , 318 A.2d 463, 1974 R.I. LEXIS 1146 (1974).

A hearing justice who granted an order for certification of questions of law to the Supreme Court and then stayed all further agency and court proceedings pending determination of the certified questions erred when he had no final agency decision or order before him that he could act upon and stay, and no proposed certified questions before him. Bayview Towing v. Stevenson, 676 A.2d 325, 1996 R.I. LEXIS 139 (1996), overruled in part, Rivera v. Employees' Ret. Sys. of R.I., 70 A.3d 905, 2013 R.I. LEXIS 47 (2013).

Merits of Controversy.

Question as to exemption of attached wages did not bear on the principal controversy, so cannot be certified. Brady v. Moreau, 65 R.I. 469 , 16 A.2d 329, 1940 R.I. LEXIS 137 (1940).

Other Remedies Available.

Superior court did not abuse discretion in refusing to certify a constitutional question where the question could be saved by exception or by reservation under former § 12-22-10 . State v. Paradis, 66 R.I. 152 , 18 A.2d 342, 1941 R.I. LEXIS 20 (1941).

Premature Certification.

Where the only relief yet sought from the superior court was the issuance of an injunction, the supreme court would not determine whether a particular practice would be in violation of the injunction. Garabedian v. Fraser, 137 A. 219, 1927 R.I. LEXIS 95 (1927).

Questions should not be certified before careful consideration is given to whether they are really as perplexing as they might at first seem since, when faced with a certified question, the supreme court is deprived of the considerable benefit of a more complete record and of the trial justice’s decision and its rationale prior to review. State v. Carcieri, 730 A.2d 11, 1999 R.I. LEXIS 111 (1999).

Question Before Court.

Certification may not be made of question that may arise in future proceedings in the case but only of a question that has already been raised. Fletcher v. Board of Aldermen, 33 R.I. 388 , 83 R.I. 388 , 81 A. 193, 1911 R.I. LEXIS 144 (1911); Tillinghast v. Johnson, 34 R.I. 136 , 82 A. 788, 1912 R.I. LEXIS 34 (1912); Ford v. Waldorf Sys., 57 R.I. 131 , 188 A. 633, 1936 R.I. LEXIS 68 (1936); Easton v. Fessenden, 63 R.I. 11 , 6 A.2d 714, 1939 R.I. LEXIS 53 (1939).

Supreme court would not consider question as to measure of damages which was certified before trial. Ford v. Waldorf Sys., 57 R.I. 131 , 188 A. 633, 1936 R.I. LEXIS 68 (1936).

Constitutionality of statute permitting, but not requiring, abbreviated form of indictments was not an issue in a criminal case based on indictments in the common law form. State v. Brosco, 63 R.I. 389 , 8 A.2d 911, 1939 R.I. LEXIS 99 (1939).

A justice of a superior or district court cannot certify a question of law to the supreme court as one of doubt and importance, when, at time of certification, there is nothing before the justice other than a motion to certify by the attorney general. State v. Weiner, 97 R.I. 506 , 199 A.2d 120, 1964 R.I. LEXIS 112 (1964).

This section as amended in 1965 was not intended to be used as a substitute for a bill of exceptions which is available to a litigant and would bring before the court the identical issue embodied in the certified question. State v. Walsh, 108 R.I. 518 , 277 A.2d 298, 1971 R.I. LEXIS 1299 (1971).

District court could not certify constitutional questions raised on preliminary examination in case beyond its trial jurisdiction but must transfer entire case to superior court. State v. Collins, 27 R.I. 419 , 62 A. 1010, 1906 R.I. LEXIS 19 (1906). But see State v. Brown & Sharpe Mfg. Co., 18 R.I. 16 , 25 A. 246, 1892 R.I. LEXIS 1 (1892) (decided under former § 12-22-10 ).

Time Question Arises.

A question arising during the course of the trial may not be certified under this section. Spaulding v. Martin, 66 R.I. 367 , 19 A.2d 305, 1941 R.I. LEXIS 37 (1941). (Decision entered prior to the 1965 amendment.)

— Laches.

Supreme court would not consider constitutional question raised by parties who were guilty of laches in raising such question. Narragansett Elec. Lighting Co. v. Sabre, 51 R.I. 37 , 150 A. 756, 1930 R.I. LEXIS 45 (1930).

Waste of Time.

Discretionary certification by the court before trial, pursuant to this section, was particularly appropriate to avoid wasting valuable judicial time in the prosecution of innumerable, possibly faulty indictments. State v. Jenison, 122 R.I. 142 , 405 A.2d 3, 1979 R.I. LEXIS 2142 (1979).

Collateral References.

Change in law after decision of lower court as affecting decision of certified question. 111 A.L.R. 1341.

Public interest as ground for refusal to dismiss an appeal where question has become moot, or dismissal is sought by one or both parties. 132 A.L.R. 1185.

9-24-28. Repealed.

History of Section. C.P.A. 1905, § 338; G.L. 1909, ch. 289, § 35; G.L. 1923, ch. 339, § 35; G.L. 1938, ch. 545, § 7; G. L. 1956, § 9-24-28 ; P.L. 1965, ch. 55, § 41; Repealed by P.L. 1972, ch. 169, § 11.

Compiler’s Notes.

Former § 9-24-28 concerned certification of equitable causes for construction of wills and trust deeds.

9-24-29. Transmission of papers on certified cases.

Whenever any proceeding or question has been certified to the supreme court, the clerk of the court by which the certification is made shall forthwith transmit the papers to the supreme court, and the parties shall follow the cause to the court.

History of Section. C.P.A. 1905, § 479; G.L. 1909, ch. 298, § 6; G.L. 1923, ch. 348, § 6; G.L. 1938, ch. 545, § 8; G.L. 1956, § 9-24-29 .

9-24-30. Return of cause to court from which certified.

The supreme court, after having decided any cause or any question certified to it by a district court or the superior court, shall send back the papers in the cause, with its decision certified thereon, to the court from which the question or cause was certified, where all further proceedings shall be had.

History of Section. C.P.A. 1905, § 480; G.L. 1909, ch. 298, § 7; G.L. 1923, ch. 348, § 7; G.L. 1938, ch. 545, § 9; G.L. 1956, § 9-24-30 .

9-24-31. Judgment on dismissal or abandonment of appellate proceeding.

Whenever any party, having commenced an appellate proceeding from any court or tribunal, whether by appeal or otherwise, shall fail to perfect the proceeding, or the court appealed to shall have dismissed the proceeding, the court or tribunal from which the proceeding was taken shall, on motion, at once enter such judgment, order, or decree, and as of such date, as the nature of the case may require, and may impose such additional costs and fines as the court deems just.

History of Section. C.P.A. 1905, § 440; G.L. 1909, ch. 294, § 14; G.L. 1923, ch. 344, § 14; G.L. 1938, ch. 543, § 1; G.L. 1956, § 9-24-31 .

Collateral References.

Commencement or prosecution to judgment of another action as abandonment of appeal. 115 A.L.R. 121.

Declaratory judgment, dismissal of appeal from. 87 A.L.R. 1250.

Dismissal of single appeal from orders or judgments in separate actions consolidated for trial together in lower court. 36 A.L.R.2d 823.

Mandamus to compel a court to reinstate or proceed with hearing of appeal erroneously dismissed. 138 A.L.R. 1162.

Public interest as ground for refusal to dismiss an appeal where question has become moot, or dismissal is sought by one or both parties. 132 A.L.R. 1185.

9-24-32. State’s right to appeal.

In any criminal proceeding, the attorney general shall have the right to object to any finding, ruling, decision, order, or judgment of the superior court or family court, and the attorney general may appeal the findings, rulings, decisions, orders, or judgments to the supreme court at any time before the defendant has been placed in jeopardy; the defendant in any criminal proceeding may also appeal any findings, rulings, decision, order, or judgment of the superior or family court; and the attorney general may appeal thereafter, if, after trial, the defendant appeals. If the attorney general appeals the findings, rulings, decisions, orders, or judgments of the superior or family court before the defendant is placed in jeopardy and the defendant prevails in the supreme court, the attorney for the defendant shall be entitled to a reasonable attorney’s fee and costs, payable by the state, to be set by the supreme court, incurred in representing the defendant in the prosecution of the attorney general’s appeal before the supreme court.

History of Section. P.L. 1968, ch. 234, § 1; P.L. 1972, ch. 169, § 10.

NOTES TO DECISIONS

Appeal From Interlocutory Ruling.

Although this section, in certain circumstances, permits an appeal by the state from an interlocutory ruling, such provision is not available to a defendant for that purpose. State v. Jenison, 122 R.I. 142 , 405 A.2d 3, 1979 R.I. LEXIS 2142 (1979).

While the state is permitted, under this section, to appeal a trial court’s decision to dismiss certain counts in an indictment, a defendant cannot cross-appeal from the denial of a motion to dismiss other counts in the indictment. State v. DiPrete, 682 A.2d 1373, 1996 R.I. LEXIS 226 (1996).

Appeal From Motion to Dismiss.

The state’s appeal from an order granting the defendant’s motion to dismiss does not violate double jeopardy where the agreed statement of facts between the parties stipulated that the facts are only to be considered for a pretrial determination and the defendant specifically reserved the right to a jury trial. State v. Pari, 546 A.2d 175, 1988 R.I. LEXIS 119 (1988).

Trial justice committed clear error by sua sponte dismissing a criminal information against defendant charging her with cruelty to or neglect of a child as defendant did not file a motion to dismiss, and the Family Court failed to follow the procedural rules applicable to dismissals. By prohibiting the Attorney General from fully prosecuting the felony information based on a dismissal in violation of R.I. Super. Ct. R. Crim. P. 9 .1, the trial justice clearly erred and deprived the State of a fair proceeding. State v. Strom, 941 A.2d 837, 2008 R.I. LEXIS 3 (2008).

Attachment of Jeopardy.

Where state appealed adverse ruling in parole revocation hearing by prosecuting a bill of exceptions to the supreme court under this statute, the court was without jurisdiction because one who had been tried and convicted had been placed in jeopardy. State v. Beaulieu, 112 R.I. 724 , 315 A.2d 434, 1974 R.I. LEXIS 1497 (1974).

The appeal of the attorney general was to no avail after the trial justice dismissed the indictment and the defendant had been placed on trial on a valid indictment before a court of competent jurisdiction, had been arraigned, had pleaded, and a jury impaneled and sworn for jeopardy had attached. State v. Alexander, 115 R.I. 491 , 348 A.2d 368, 1975 R.I. LEXIS 1177 (1975).

9-24-33. Procedure for state’s appeal.

The attorney general shall file notice of his or her intention to appeal to the supreme court with the clerk of the superior or family court, together with a written request to the court stenographer for a transcript for so much of the testimony as may be required, within twenty (20) days after any adverse finding, ruling, decision, order, or judgment is entered or made, when such has been entered or made, before the defendant has been placed in jeopardy; and the filing shall stay the finding, ruling, decision, order, or judgment which the attorney general is appealing; and if after trial, the defendant has filed notice of his or her intention to appeal to the supreme court, the attorney general shall file notice of his or her intention to appeal to the supreme court within twenty (20) days thereof, in the same manner as provided. An appeal taken pursuant to this section shall proceed in accordance with the rules of appellate procedure of the supreme court.

History of Section. P.L. 1968, ch. 234, § 1; P.L. 1972, ch. 169, § 10.

Chapter 25 Execution

9-25-1. “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, § 9-25-1 .

Rules of Court.

Procedure for execution in district court in accordance with statute, see Dist. Ct. Civil Rule 69.

Procedure on execution in superior court to be in accordance with statute, see Super. Ct. R. Civ. P. Rule 69.

Comparative Legislation.

Issuance of execution:

Conn. Gen. Stat. § 52-350a et seq.

Mass. Ann. Laws ch. 235, § 14 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).

Due Process.

The procedures undertaken by the plaintiff, such as seeking to enforce by writ of execution terms and provisions of foreign default judgment, afforded the defendants more than adequate due process. Pezzello Bros. Fruit & Produce Co. v. Armenakes, 677 A.2d 907, 1996 R.I. LEXIS 181 (1996).

Judgment Debtor.

A judgment debtor can be held as a garnishee of the judgment creditor in the same court in which the judgment was rendered. Ellbey v. Cunningham, 54 R.I. 4 , 168 A. 815, 1933 R.I. LEXIS 2 (1933).

Notice.

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 of this chapter and not by writ of attachment (chapter 5 of title 10). 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 (1996).

Scope of Term.

Where the law provides for the attachment of the personal estate of a defendant in the hands of his trustee, that term includes also his attorney, agent, factor and debtor. Greene v. Keene, 14 R.I. 388 , 1884 R.I. LEXIS 22 (1884).

The word “trustee” as used in the various provisions of the statutes relating to trustee process, manifestly denotes the debtor or agent of the principal defendant, i.e., the person against whom the action ex contractu at law only might be maintained in favor of the principal defendant, and is not used in its technical sense. 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).

9-25-2. Time of issue.

Executions shall issue at the request of the moving party, unless stayed by applicable procedural rules or unless otherwise ordered or provided by law; however, no execution shall issue before forty-eight (48) hours have elapsed after the entry of judgment.

History of Section. C.P.A. 1905, § 604; G.L. 1909, ch. 303, § 2; G.L. 1923, ch. 353, § 2; G.L. 1938, ch. 552, § 2; G.L. 1956, § 9-25-2 ; P.L. 1965, ch. 55, § 43; P.L. 1984, ch. 357, § 1.

Rules of Court.

Stay of execution in district court, see Dist. Ct. Civil Rule 62.

Stay of execution in superior court, see Super. Ct. R. Civ. P. Rule 62.

Cross References.

Decree for allowance to prosecute or defend in divorce proceeding, execution on, § 15-5-16 .

Order for allowance to wife and support of children, execution on, § 15-5-19 .

NOTES TO DECISIONS

Validity of Execution.

Execution on a default judgment was issued prematurely, where the judgment was entered on October 25, 1978, and execution on the judgment was issued on October 27, 1978; and the execution was therefore void ab initio. Golderese v. Suburban Land Co., 590 A.2d 395, 1991 R.I. LEXIS 76 (1991).

Collateral References.

Mere rendition or formal entry or docketing of judgment as prerequisite to issuance of valid execution thereon. 65 A.L.R.2d 1162.

Time of issuing writ as ground of collateral attack on execution sales. 1 A.L.R. 1437.

9-25-3. Limitation on issuance.

Executions, original or alias, may be issued by any court at any time within six (6) years from the rendition of the judgment originally or from the return day of the last execution.

History of Section. C.P.A. 1905, § 606; G.L. 1909, ch. 303, § 4; G.L. 1923, ch. 353, § 4; G.L. 1938, ch. 552, § 4; G.L. 1956, § 9-25-3 .

NOTES TO DECISIONS

Procedure.

Under the statute, when an alias or pluries execution is wanted, the practice has been for the clerk to issue it, if the prior execution appears by the return to be unsatisfied, or if this does not appear, the practice has been for the court to execute the new execution on motion without notice. In re McManaman, 16 R.I. 358 , 16 A. 148, 1888 R.I. LEXIS 64 (1888).

Relief From Judgment.

The court refused to apply the one-year limitation applicable to motions pursuant to Super. Ct. R. Civ. P. 60(b) to independent actions seeking relief from judgment, since this section gives successful litigants six years in which to seek an execution order and to hold that an independent action brought by the losing party must be brought within one year would be to deprive litigants of the right to challenge judgments for which execution has issued beyond that one year. Paul v. Fortier, 117 R.I. 284 , 366 A.2d 550, 1976 R.I. LEXIS 1625 (1976).

Collateral References.

Part payment or promise to pay judgment as affecting time for execution. 45 A.L.R.2d 967.

9-25-4. Stay of execution.

Any justice of the supreme, superior, or district court may, upon motion and for cause shown, stay execution upon any judgment or decree rendered in any court, until further order. With respect to a judgment or decree for child support, good cause shall be deemed to be shown when the family court, pursuant to § 15-5-16.2.4 , has suspended payment of child support arrearages.

History of Section. C.P.A. 1905, § 605; G.L. 1909, ch. 303, § 1; G.L. 1923, ch. 353, § 1; G.L. 1938, ch. 552, § 3; P.L. 1948, ch. 2086, § 1; G.L. 1956, § 9-25-4 ; P.L. 1990, ch. 477, § 2.

Cross References.

Insurance company enjoined from further business, stay of execution against, § 27-1-17 .

NOTES TO DECISIONS

Bankruptcy Proceedings.

A stay of execution on the ground of declaration of bankruptcy in federal court, when sought by persons not parties to the principal suit, should be obtained by independent suit, rather than by motion. In re Ross, 11 R.I. 427 , 1877 R.I. LEXIS 15 (1877).

Decree Granting Alimony.

A justice of a superior court plainly has power to stay execution pending appeal from a decree granting alimony. Boyden v. Boyden, 50 R.I. 326 , 147 A. 621, 1929 R.I. LEXIS 69 (1929).

Superior court justice, in decree reducing alimony and support allowance, could not stay all execution on accrued allowances and direct that part of reduced allowance be applied against accrued allowances, but he could stay execution against the body. Parenti v. Parenti, 71 R.I. 18 , 41 A.2d 313, 1945 R.I. LEXIS 9 (1945).

Stay Pending Equity Proceedings.

A stay of execution would be granted until the rights of parties were determined by a bill in equity. Sawin v. Mt. Vernon Bank, 2 R.I. 382 , 1853 R.I. LEXIS 2 (1853).

Collateral References.

Alien enemy, stay of execution on judgment in favor of. 137 A.L.R. 1342.

Building and loan association, stay of execution and judgment obtained by withdrawing member of. 98 A.L.R. 105.

Costs, right to have enforcement of judgment for, stayed pending final determination of the case. 78 A.L.R. 359.

Limitations, stay of execution of judgment as suspending running of. 21 A.L.R. 1067.

New trial, motion for, as suspension or stay of execution of judgment. 121 A.L.R. 686.

Ratification by corporation of unauthorized stay of execution by officer by acceptance and retention of benefits. 7 A.L.R. 1482.

Stay of execution on ground of absence in military service, pursuant to Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended. 75 A.L.R.2d 1062.

9-25-5. Fee prerequisite to issuance.

No person shall be entitled to an execution until the fee therefor shall have been paid.

History of Section. C.P.A. 1905, § 610; G.L. 1909, ch. 303, § 8; G.L. 1923, ch. 353, § 8; G.L. 1938, ch. 552, § 8; G.L. 1956, § 9-25-5 .

9-25-6. Style of executions.

Executions issued by any court shall issue in the name of the state of Rhode Island and shall be signed, sealed, and run in like manner as original writs.

History of Section. C.P.A. 1905, § 603; G.L. 1909, ch. 303, § 1; G.L. 1923, ch. 353, § 1; G.L. 1938, ch. 552, § 1; G.L. 1956, § 9-25-6 ; P.L. 2021, ch. 77, § 8, effective June 23, 2021; P.L. 2021, ch. 78, § 8, effective June 23, 2021.

Compiler’s Notes.

P.L. 2021, ch. 77, § 8, and P.L. 2021, ch. 78, § 8 enacted identical amendments to this section.

9-25-7. Form of superior court writ of execution.

A writ of execution issued by 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: Whereas of by the consideration of the SUPERIOR COURT holden at did on the day of recover judgment against of for the sum of debt (or damages) and costs of suit, as to us appears of record, whereof execution remains to be done: We command you, therefore, that of the goods and chattels and real estate of the said , within your precinct, you cause to be levied and paid unto the said the aforesaid sums, being in the whole, with 50 cents more for this writ; and thereof also to satisfy yourself for your own fees; [and for want of the goods and chattels and real estate of the said to be found in your precinct to satisfy and pay the same as aforesaid, we command you to take the body of the said and commit unto our correctional institution in your precinct, therein to be kept until pay the full sum above mentioned, with your fees, or until be discharged by the said or otherwise by order of law.] Hereof fail not, and make true return of this writ and of your doings thereon to our superior court at for our county of on the day of A.D. . 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, § 614; G.L. 1909, ch. 303, § 12; G.L. 1923, ch. 353, § 12; G.L. 1938, ch. 552, § 12; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 9-25-7 ; P.L. 2021, ch. 77, § 8, effective June 23, 2021; P.L. 2021, ch. 78, § 8, effective June 23, 2021.

Compiler's Notes.

P.L. 2021, ch. 77, § 8, and P.L. 2021, ch. 78, § 8 enacted identical amendments to this section.

Cross References.

Execution against parties liable on contract or specialty, § 9-2-2 .

NOTES TO DECISIONS

In General.

Legislative enactments relating to the service of process are to be followed and construed strictly. Plantations Indus. Supply v. O'Brien, 119 R.I. 426 , 379 A.2d 365, 1977 R.I. LEXIS 1921 (1977).

Real Estate.

Although this section does not provide for description of real estate, the better practice would be for the officer levying on real estate to put a description thereof on the execution itself in order that §§ 9-26-14 and 9-26-15 might be complied with. Romoli v. Motta, 59 R.I. 201 , 194 A. 733, 1937 R.I. LEXIS 150 (1937).

The requirements of §§ 9-26-14 and 9-26-15 are fulfilled if the officer levying execution, in filing a copy with the clerk or recorder, annexes a certificate that he levied all defendant’s interest in described real estate, even though he annexes the statement sometime after filing. Romoli v. Motta, 59 R.I. 201 , 194 A. 733, 1937 R.I. LEXIS 150 (1937).

9-25-8. Form of district court writ of execution.

A writ of execution issued by a district court shall be substantially in the following form:

THE STATE OF RHODE ISLAND. SC. To the sheriff, his or her deputy or to either of the town sergeants or constables in the county of (SEAL) Greeting: Whereas of at a DISTRICT COURT holden at did on the day of recover judgment of said court against of for the sum of debt or (damages), and costs of suit taxed at , as of record of said court doth appear, which sums, in the whole, amount to for which execution remains to be done: We command you, therefore, that of the goods and chattels and real estate of the said within your precinct, you levy the said sum of , together with 15 cents for this execution, as also your lawful fees for serving the same, and therewith satisfy and pay the said ; [and for want of the goods and chattels and real estate of the said to be by you found within your precinct, to satisfy and pay the same sums aforesaid, we command you to take the body of the said into your custody, and safely secure in our jail in until satisfy and pay the said the sums aforesaid and your fees, or until be by the said therefrom discharged, or otherwise by order of law.] Hereof fail not, and make true return of this writ and of your doings thereon, on the day of A.D. . Witness, the seal of the district court of the judicial district, this day of in the year . , Clerk (or Justice.)

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History of Section. C.P.A. 1905, § 616; G.L. 1909, ch. 303, § 14; G.L. 1923, ch. 353, § 14; G.L. 1938, ch. 552, § 14; G.L. 1956, § 9-25-8 ; P.L. 2021, ch. 77, § 8, effective June 23, 2021; P.L. 2021, ch. 78, § 8, effective June 23, 2021.

Compiler's Notes.

P.L. 2021, ch. 77, § 8, and P.L. 2021, ch. 78, § 8 enacted identical amendments to this section.

Cross References.

Fees in district court, § 9-29-1 .

NOTES TO DECISIONS

Construction.

Legislative enactments relating to the service of process are to be followed and construed strictly. Plantations Indus. Supply v. O'Brien, 119 R.I. 426 , 379 A.2d 365, 1977 R.I. LEXIS 1921 (1977).

9-25-9. Form of superior court writs of possession.

  1. Writs of possession issuing from the superior court shall be substantially in the following form:

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  2. If an officer, serving an execution issued under this section on a judgment for the plaintiff for possession of land or tenements, removes personal property belonging to a person other than the plaintiff from the land or tenements and places it upon the sidewalk, highway, street, or way on which land or tenements abut, he or she may forthwith and before the expiration of the time limited in any statute or ordinance for the removal of obstructions in the street, remove the personal property and cause it to be stored for the benefit of the owners thereof.
  3. Whoever accepts the personal property on storage from the officer shall have a lien thereon for reasonable storage fees and for reasonable expenses of removing it to the place of storage, but the lien shall not be enforced by sale of the property until the property has been kept on storage for at least thirty (30) days.
  4. If the owner of the property is present and claims it when it is so removed from the land or tenements, the officer shall not remove and store it, and his or her act of placing it upon the sidewalk, highway, street, or way shall be deemed to be the act of the owner, who alone shall be held to answer therefor.

THE STATE OF RHODE ISLAND. SC. To the sheriffs of our several counties or to their deputies or to a certified constable, (SEAL) ; ; Greeting: Whereas by the consideration of the SUPERIOR COURT holden at did on the day of recover judgment for the possession of with the privileges and appurtenances thereto belonging against who had unjustly withholden from the possession thereof, and also by the consideration of the same court recovered judgment against the said for the sum of costs of suit, as to us appears of record, whereof execution remains to be done: We command you, therefore, that without delay you cause the said to have possession of and in the said with the privileges and appurtenances thereunto belonging. We also command you that of the goods and chattels and real estate of the said , within your precinct, you cause to be levied and paid to the said the aforesaid sum of , and thereof also to satisfy yourself for your own fees; [and for want of the goods and chattels and real estate of the said to be found in your precinct to satisfy and pay the same as aforesaid, we command you to take the body of the said and commit unto our correctional institution in your precinct, therein to be kept until pay the full sum above mentioned, with your fees, or until be discharged by the said or otherwise by order of law.] Hereof fail not, and make true return of this writ and of your doings thereon to our superior court at on the day of A.D. . Witness, the seal of our superior court at this day of in the year . , Clerk.

History of Section. C.P.A. 1905, § 615; G.L. 1909, ch. 303, § 13; G.L. 1923, ch. 353, § 13; G.L. 1938, ch. 552, § 13; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 9-25-9 ; P.L. 1966, ch. 24, § 1; P.L. 2015, ch. 260, § 11; P.L. 2015, ch. 275, § 11; P.L. 2021, ch. 77, § 8, effective June 23, 2021; P.L. 2021, ch. 78, § 8, effective June 23, 2021.

Compiler’s Notes.

P.L. 2015, ch. 260, § 11, and P.L. 2015, ch. 275, § 11 enacted identical amendments to this section.

P.L. 2021, ch. 77, § 8, and P.L. 2021, ch. 78, § 8 enacted identical amendments to this section.

Effective Dates.

P.L. 2015, ch. 260, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

P.L. 2015, ch. 275, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

NOTES TO DECISIONS

Defects.
— Immunity From Liability for Arrest.

Where a writ of execution was facially valid, where the writ was forwarded to the attorney of those seeking the writ, who after reviewing it failed to notice any defects (additional erroneous body attachment language), where officers reviewed the fully completed statutory form and noticed no defects, and where a constable spoke with a justice of the Rhode Island superior court, who would have been responsible for issuing a writ ordering the body attachment, and explained to the judge that he had attached the body of party, which did not raise any suspicion of the judge, then the arresting officers, actions were objectively reasonable in executing the arrest and the officers thus were entitled to qualified immunity. Whiting v. Kirk, 960 F.2d 248, 1992 U.S. App. LEXIS 5518 (1st Cir. 1992).

9-25-10. Form of district court writs of possession.

  1. Writs of possession, issuing from a district court, shall be substantially in the following form:

    Click to view

  2. If an officer, serving an execution issued under this section on a judgment for the plaintiff for possession of land or tenements, removes personal property belonging to a person other than the plaintiff from the land or tenements and places it upon the sidewalk, highway, street, or way on which land or tenements abut, he or she may forthwith and before the expiration of the time limited in any statute or ordinance for the removal of obstructions in the street, remove the personal property and cause it to be stored for the benefit of the owners thereof.
  3. Whoever accepts the personal property on storage from the officer shall have a lien thereon for reasonable storage fees and for reasonable expenses of removing it to the place of storage, but the lien shall not be enforced by sale of the property until the property has been kept on storage for at least thirty (30) days.
  4. If the owner of the property is present and claims it when it is so removed from the land or tenements, the officer shall not remove and store it, and his or her act of placing it upon the sidewalk, highway, street, or way shall be deemed to be the act of the owner, who alone shall be held to answer therefor.

THE STATE OF RHODE ISLAND. SC. To the sheriff, his or her deputy, or to either of the town sergeants or constables in the county of (SEAL) Greeting: Whereas of at a DISTRICT COURT holden at did on the day of recover judgment of said court for the possession of with the privileges and appurtenances thereto belonging against of who had unjustly withholden from the possession thereof, and also, by the consideration of the same court, recovered judgment against the said for the sum of costs of suit, as of record of said court doth appear, whereof execution remains to be done: We command you, therefore, that without delay you cause the said to have possession of and in the said with the privileges and appurtenances thereunto belonging. We also command you that of the goods and chattels and real estate of the said within your precinct, you cause to be levied and paid to the said the aforesaid sum of with 15 cents more for this writ, and thereof also to satisfy yourself for your own fees; [and for want of the goods and chattels and real estate of the said to be found in your precinct to satisfy and pay the same as aforesaid, we command you to take the body of the said and commit unto our correctional institution, in your precinct, therein to be kept until pay the full sum above mentioned, with your fees, or until be discharged by the said or otherwise by order of law.] Hereof fail not, and make true return of this writ and of your doings thereon, on the day of A.D. . Witness, the seal of the district court of the judicial district, this day of in the year . , Clerk (or Justice.)

History of Section. C.P.A. 1905, § 617; G.L. 1909, ch. 303, § 15; G.L. 1923, ch. 353, § 15; G.L. 1938, ch. 552, § 15; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 9-25-10 ; P.L. 1966, ch. 24, § 2; P.L. 2021, ch. 77, § 8, effective June 23, 2021; P.L. 2021, ch. 78, § 8, effective June 23, 2021.

Compiler's Notes.

P.L. 2021, ch. 77, § 8, and P.L. 2021, ch. 78, § 8 enacted identical amendments to this section.

9-25-11. Bracketed words in forms.

If the execution issued by any court is one which may run against the body of the defendant, the words included in brackets in the forms prescribed in §§ 9-25-7 9-25-10 shall be retained, otherwise they shall be stricken out.

History of Section. C.P.A. 1905, § 618; G.L. 1909, ch. 303, § 16; G.L. 1923, ch. 353, § 16; G.L. 1938, ch. 552, § 16; G.L. 1956, § 9-25-11 .

9-25-12. Form of execution against trustee or trust estate.

In every execution issued against any defendant in an action or suit in which another person shall have been charged as the trustee of the defendant, there shall be inserted next after the words “goods and chattels and real estate of the defendant” the words “and especially the personal estate of the said defendant in the hands or possession of (here insert the name of the trustee) charged as trustee of the said defendant to the extent of (here insert the amount for which the trustee is charged)”; or if the trustee shall be charged by his or her default in not filing the necessary affidavit in the cause, insert in lieu of the clause fixing the extent to which the trustee shall be charged, after the words “charged as trustee of the said defendant”, the words “by the default of the said trustee to file his or her affidavit in said cause”.

History of Section. C.P.A. 1905, § 622; G.L. 1909, ch. 303, § 20; G.L. 1923, ch. 353, § 20; G.L. 1938, ch. 552, § 20; G.L. 1956, § 9-25-12 .

NOTES TO DECISIONS

Default.

A charge made against a garnishee who does not appear and is charged in default does not have the force of a judgment, so that the garnishee may show that he has duly filed his affidavit and should not have been charged. Eddy v. Providence Mach. Co., 15 R.I. 7 , 22 A. 1116, 1885 R.I. LEXIS 41 (1885).

Collateral References.

Surplus income of trust, in excess of amount required for support and education of beneficiary, as subject to supplemental proceedings. 36 A.L.R.2d 1215.

9-25-13. Variation of forms to comply with law.

The court issuing an execution in any case in which no form shall be prescribed may vary the forms as provided in this chapter so as to comply with the law governing the particular case.

History of Section. C.P.A. 1905, § 620; G.L. 1909, ch. 303, § 18; G.L. 1923, ch. 353, § 18; G.L. 1938, ch. 552, § 18; G.L. 1956, § 9-25-13 ; P.L. 1997, ch. 326, § 72.

9-25-14. Marginal notations on execution.

The clerk of any court or justice issuing an execution shall note on the margin or in the body thereof the time when the judgment recited in the execution was rendered, and if the execution was awarded against the defendant in an action brought against him or her upon any penal statute or in an action sounding in tort in which the title to real estate was not in dispute, the marginal notation shall so state.

History of Section. C.P.A. 1905, § 611; G.L. 1909, ch. 303, § 9; G.L. 1923, ch. 353, § 9; G.L. 1938, ch. 552, § 9; G.L. 1956, § 9-25-14 ; P.L. 1965, ch. 55, § 43.

9-25-15. Cases in which execution may issue against body.

An execution, original, alias, or pluries, may issue against the body of a defendant not exempt from arrest in an action which shall have been brought upon a penal statute, or in an action sounding in tort in which the title to real estate was not in dispute, or against bail in criminal cases, or whenever the defendant shall have been arrested and held to bail upon a writ of arrest or writ of mesne process therein, or whenever it shall be made to appear to the court which rendered the judgment in the action, or to any justice thereof, that the defendant is about to leave the state without leaving therein sufficient real or personal estate to satisfy the judgment, or that the defendant has been guilty of fraud in fact involving moral turpitude or intentional wrong either in contracting the debt for the recovery of which the judgment was rendered or in the concealment, detention or disposition of his or her property; provided, however, that no execution, original, alias or pluries, shall issue against the body of a defendant unless so ordered by a justice of the superior court or a justice of a district court upon the written ex parte motion of a party named in the action.

History of Section. C.P.A. 1905, § 613; G.L. 1909, ch. 303, § 11; G.L. 1923, ch. 353, § 11; G.L. 1938, ch. 552, § 11; G.L. 1956, § 9-25-15 ; P.L. 1961, ch. 167, § 2; P.L. 1965, ch. 55, § 43.

Cross References.

Effect of execution after debtor’s oath, §§ 10-13-22 , 10-13-23 .

Imprisonment on civil process, § 10-10-1 et seq.

NOTES TO DECISIONS

Constitutionality.

By failing to provide for a preincarceration hearing to determine ability to pay, this section in effect enables only judgment debtors who are able to pay to obtain immediate release from imprisonment and therefore denies equal protection to debtors who are unable to pay. Landrigan v. McElroy, 457 A.2d 1056, 1983 R.I. LEXIS 832 (1983).

The ex parte hearing provision of the 1961 amendment to this section is unconstitutional as violative of the equal protection clause. Landrigan v. McElroy, 457 A.2d 1056, 1983 R.I. LEXIS 832 (1983).

The Rhode Island Supreme Court shall sever the ex parte hearing portion of the 1961 amendment to this section from the rest of the statute, strike down this element as unconstitutional, and interpret the remaining portion of the statute as requiring a hearing to determine the judgment debtor’s ability to pay. Landrigan v. McElroy, 457 A.2d 1056, 1983 R.I. LEXIS 832 (1983).

Breach of Promise.

Breach of promise of marriage is not a tort and execution thereon could not issue against the body except for some cause for which such execution could issue in other contractual actions. Drury v. Merrill, 20 R.I. 2 , 36 A. 835, 1897 R.I. LEXIS 19 (1897).

Corporate Stockholders.

Former statute for execution against the body of a stockholder for corporate debts did not require that the conditions described in this section be met. In re Penniman, 11 R.I. 333 , 1876 R.I. LEXIS 19 (1876), aff'd, 103 U.S. 714, 26 L. Ed. 602, 1880 U.S. LEXIS 2184 (1881). (Decision prior to enactment of § 7-1-24 .).

Detention of Property.

Execution against the body could be issued where defendant refused to apply a patent right to the payment of a judgment since a patent right was not exempt from attachment. In re Keene, 15 R.I. 294 , 3 A. 418, 1886 R.I. LEXIS 18 (1886).

It was not fraudulent for a widow to refuse to have her dower assigned so it could be used to satisfy a judgment. MAXON v. GRAY, 15 R.I. 475 , 8 A. 696, 1887 R.I. LEXIS 19 (1887).

Judgment creditor had the right to a body execution against the judgment debtor upon the latter’s failure to deliver up property in satisfaction of money judgment for injuries sustained as result of assault on judgment creditor. Martin v. Estrella, 110 R.I. 368 , 292 A.2d 884, 1972 R.I. LEXIS 925 (1972), overruled, Landrigan v. McElroy, 457 A.2d 1056, 1983 R.I. LEXIS 832 (1983).

Where it has been established that judgment debtor has delivered up his property judgment to the benefit of his creditors, he is protected against continued incarceration. Martin v. Estrella, 110 R.I. 368 , 292 A.2d 884, 1972 R.I. LEXIS 925 (1972), overruled, Landrigan v. McElroy, 457 A.2d 1056, 1983 R.I. LEXIS 832 (1983).

Discretion of Judge.

If a trial justice determines that the defendant is unable to pay the judgment, he must refuse to issue the body execution. He may, however, order partial payments or take whatever other action is appropriate under the circumstances. Landrigan v. McElroy, 457 A.2d 1056, 1983 R.I. LEXIS 832 (1983).

Embezzlement.

Where the declaration alleged that the defendant as plaintiff’s bookkeeper used plaintiff’s money for her own use, the action was in trespass, rather than assumpsit, so as to warrant a body execution. Da Costa v. Rose, 71 R.I. 124 , 42 A.2d 665, 1945 R.I. LEXIS 24 (1945).

Execution Against Plaintiff.

The word “defendant” in this section refers to a defendant in execution as well as to a defendant in a suit and may include a plaintiff against whom judgment for costs has been rendered. In re Thayer, 11 R.I. 160 , 1875 R.I. LEXIS 17 (1875).

Hearing.

Due process requires that a hearing take place after reasonable notice to determine the defendant’s ability to pay the judgment against him prior to the issuance of a body execution. Landrigan v. McElroy, 457 A.2d 1056, 1983 R.I. LEXIS 832 (1983).

At the hearing to determine the debtor’s ability to pay, the defendant has the burden of raising the issue of ability to pay and of demonstrating such an inability by a fair preponderance of the evidence. Landrigan v. McElroy, 457 A.2d 1056, 1983 R.I. LEXIS 832 (1983).

History.

For a discussion of the history of the body execution statute, see Landrigan v. McElroy, 457 A.2d 1056, 1983 R.I. LEXIS 832 (1983).

Notice.

The statute does not prescribe any notice before issuance of execution. In re Keene, 15 R.I. 294 , 3 A. 418, 1886 R.I. LEXIS 18 (1886).

This section allows for a body attachment only after a full, noticed hearing before a judge. An attachment issued without notice and a hearing violates the seized person’s constitutional rights. Whiting v. Kirk, 768 F. Supp. 26, 1991 U.S. Dist. LEXIS 10134 (D.R.I. 1991), rev'd, vacated, 960 F.2d 248, 1992 U.S. App. LEXIS 5518 (1st Cir. 1992).

Trespass Quare Clausum Fregit.

Execution will not issue against the defendant’s body in an action of trespass quare clausum fregit when the defendant has submitted evidence to dispute the plaintiff’s title, even though the claim of title was not specially or formally pleaded. Kinnecom v. Waterman, 11 R.I. 638 , 1877 R.I. LEXIS 67 (1877).

Collateral References.

Personal injury, statute authorizing arrest in action for. 33 A.L.R. 648.

Satisfaction of debt by arrest under body execution and discharge under Poor Debtors’ Act. 14 A.L.R. 505.

Stamped, printed or typewritten signature to capias. 37 A.L.R. 87.

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.

9-25-16. Repealed.

History of Section. P.L. 1926, ch. 784, § 1; G.L. 1938, ch. 479, § 1; G.L. 1956, § 9-25-16 ; Repealed by P.L. 1965, ch. 55, § 44, effective January 10, 1966.

Compiler’s Notes.

Former § 9-25-16 concerned cases where order of justice required for execution against body.

9-25-17. Execution against female on small judgment.

No execution shall issue against the body of any female on any judgment founded on a contract where the debt or damages do not exceed fifty dollars ($50.00); but in such case, the execution shall issue against the goods and chattels and real estate of the female against whom the judgment shall have been rendered.

History of Section. C.P.A. 1905, § 612; G.L. 1909, ch. 303, § 10; G.L. 1923, ch. 353, § 10; G.L. 1938, ch. 552, § 10; G.L. 1956, § 9-25-17 .

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.

9-25-18. Setoff of judgments and execution for balance.

Whenever any court shall render final judgment for debts or damages in two (2) or more personal actions pending at the same time, in which the parties shall be reversed, and shall sue and be sued in the same right and capacity, the court shall set off the debts or damages recovered in the judgments and, provided no execution has already been issued upon either judgment, shall issue execution for the balance only, in favor of the party to whom it shall be due, with costs, if costs were recovered, and for costs only, if no balance upon the setoff is left; and a separate execution shall be issued in favor of the other party for costs, if costs were recovered by him or her; provided, that in every such case hereby provided for, the court shall have power to make such orders as may be required to carry out the intent of this section.

History of Section. C.P.A. 1905, § 435; G.L. 1909, ch. 294, § 9; G.L. 1923, ch. 344, § 9; G.L. 1938, ch. 552, § 22; G.L. 1956, § 9-25-18 .

NOTES TO DECISIONS

Identity of Parties.

Execution against an individual defendant would not be stayed because of a pending action in which defendant was plaintiff jointly with others. Hopkins v. Drowne, 21 R.I. 80 , 41 A. 1010, 1898 R.I. LEXIS 30 (1898).

Pending at Same Time.

Execution would not be stayed in the first action where the second action, in which the parties were reversed, was not brought until after judgment and execution in the first. Hopkins v. Drowne, 21 R.I. 80 , 41 A. 1010, 1898 R.I. LEXIS 30 (1898).

Setoffs in Pleadings.

To be set off under this section, judgments need not be based on claims that could have been set off against each other in the pleadings. Cozzens v. Hodges, 2 R.I. 3 , 1851 R.I. LEXIS 16 (1851).

The fact that judgments may be set off under this section furnishes strong reason for a strict construction of the statute governing pleas of setoff. Cole v. Shanahan, 24 R.I. 427 , 53 A. 273, 1902 R.I. LEXIS 93 (1902).

Stay of Execution.

Execution may be stayed on the basis of a pending action which may produce a judgment which could be set off under this section. Cozzens v. Hodges, 2 R.I. 3 , 1851 R.I. LEXIS 16 (1851).

Collateral References.

Attorney’s lien as subject to setoff against judgment. 34 A.L.R. 323; 51 A.L.R. 1268.

Contract, judgment as, within statute in relation to setoff or counterclaim. 55 A.L.R. 469.

Exemption of debtor, availability of, to defeat setoff of judgment. 106 A.L.R. 1078.

Exemptions, judgment under which exempt property has been seized as a setoff or counterclaim against claim based on wrongful seizure. 20 A.L.R. 276.

Judgment debtor’s right to restitution upon reversal or vacation of judgment as subject to setoff in favor of judgment creditor. 101 A.L.R. 1148.

Priority between attorney’s charging lien against judgment and opposing party’s right of setoff against same judgment. 27 A.L.R.5th 764.

Setoff against partnership judgment of judgment against individual partner. 39 A.L.R.2d 295.

Setoff as between judgments. 121 A.L.R. 478.

9-25-19. Replacement of lost or destroyed executions.

The superior court, family court, or district court, at any time upon application made by the party in favor of whom any original, alias, or pluries execution has issued and upon proof that the execution has been lost or destroyed previous to the satisfaction thereof, may issue, or authorize the clerk of the court to issue, another execution in the place of the one so lost or destroyed.

History of Section. C.P.A. 1905, § 607; G.L. 1909, ch. 303, § 5; G.L. 1923, ch. 353, § 5; G.L. 1938, ch. 552, § 5; G.L. 1956, § 9-25-19 ; P.L. 1979, ch. 373, § 8.

9-25-20. Return of executions.

Every execution issued by the supreme or superior or family court shall, unless otherwise specially provided therein, be made returnable thereto one year from the date of the execution, and shall be returned by the officer charged therewith; and if the officer shall not return the execution within that time, he or she shall be liable therefor as by law prescribed.

History of Section. C.P.A. 1905, § 608; G.L. 1909, ch. 303, § 6; G.L. 1923, ch. 353, § 6; G.L. 1938, ch. 552, § 6; G.L. 1956, § 9-25-20 ; P.L. 1979, ch. 373, § 8; P.L. 1982, ch. 130, § 1.

NOTES TO DECISIONS

Nulla Bona Return.

Judgment creditor was not precluded from supplemental relief under §§ 9-28-3 to 9-28-5 , even though execution returnable six months from issue was returned nulla bona two days after issue. Curtis v. Morton, 39 R.I. 331 , 97 A. 803, 1916 R.I. LEXIS 34 (1916).

Collateral References.

Amendment of return of execution or attachment, power of court to compel officer to make. 132 A.L.R. 904.

Contradiction, explanation, or amplification of return on execution. 129 A.L.R. 1364.

Effect of return made after return day. 2 A.L.R. 181.

False return made by assistant or deputy, liability of sheriff, constable, or marshal on his bond for. 1 A.L.R. 240; 102 A.L.R. 174; 116 A.L.R. 1064; 157 A.L.R. 194.

Sheriff’s deed as prima facie evidence of return. 36 A.L.R. 1001; 108 A.L.R. 667.

Surety on bond given to prevent, or secure release of, attachment after recovery of judgment by plaintiff, on ground of defects in officer’s return to writ. 89 A.L.R. 276.

9-25-21. Return of district court executions.

Every execution issued by any district court shall, unless otherwise specially provided therein, be returnable one year after the date thereof, and be returned to the district court which issued it.

History of Section. C.P.A. 1905, § 609; G.L. 1909, ch. 303, § 7; G.L. 1923, ch. 353, § 7; G.L. 1938, ch. 552, § 7; G.L. 1956, § 9-25-21 ; P.L. 1982, ch. 130, § 1.

NOTES TO DECISIONS

Return Date.

A 20-day return date is allowable under this section. Russell v. Kalian, 414 A.2d 462, 1980 R.I. LEXIS 1559 (1980).

9-25-22. Execution against defendant released from arrest by court.

Whenever the court in which an original writ is returnable shall release the defendant therein from arrest and discharge the bail, if any taken thereon, the execution in such actions shall not issue against the body of the defendant so released, but against his or her goods and chattels and real estate.

History of Section. C.P.A. 1905, § 619; G.L. 1909, ch. 303, § 17; G.L. 1923, ch. 353, § 17; G.L. 1938, ch. 552, § 17; G.L. 1956, § 9-25-22 .

NOTES TO DECISIONS

Rearrest.

This section did not prevent the rearrest of a defendant who had been discharged because the previous arrest was illegal and void. Neary v. Barrows, 64 R.I. 260 , 11 A.2d 618, 1940 R.I. LEXIS 28 (1940).

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.

9-25-23. Execution against attached property.

Whenever final judgment or decree shall be rendered for the plaintiff in any action or suit in which a writ was served attaching real estate, or goods and chattels, or stock or shares in any incorporated company, the execution issued on the judgment or decree shall be levied on the property so attached, as soon as may be; but if execution shall not be so levied within one year from the day of entry of judgment or decree, the property attached shall be discharged from the attachment. In computing the periods of time provided in this section, time during which execution is stayed shall not be included.

History of Section. C.P.A. 1905, § 621; G.L. 1909, ch. 303, § 19; G.L. 1923, ch. 353, § 19; G.L. 1938, ch. 552, § 19; G.L. 1956, § 9-25-23 ; P.L. 1965, ch. 55, § 43; P.L. 1979, ch. 373, § 8; P.L. 1982, ch. 130, § 1.

NOTES TO DECISIONS

Applicability to Post-Judgment Execution.

This section addresses the situation in which a prejudgment attachment has been permitted on the assets of a debtor and a judgment is later obtained, and would appear to have no application to a post-judgment execution. Lombardi v. Goodyear Loan Co., 549 A.2d 1025, 1988 R.I. LEXIS 131 (1988).

Attachment of Tenancies by the Entireties.

In cases of attachment of an interest in a tenancy by the entirety, levy and execution are in effect stayed by operation of law; therefore, the one-year period does not begin to run until the legal inhibition upon levy and execution is lifted, namely, upon the death of the nondebtor spouse. In re Gibbons, 459 A.2d 938, 1983 R.I. LEXIS 907 (1983).

Computation of Time.

Where judgment was entered on June 10 and execution was levied on following December 10, there was compliance with six-month requirement. Carroll v. Salisbury, 28 R.I. 16 , 65 A. 274, 1906 R.I. LEXIS 3 (1906).

Levy After Discharge of Attachment.

The expiration of six months without levy would not invalidate a subsequent levy but would operate only to discharge the original attachment. Carroll v. Salisbury, 28 R.I. 16 , 65 A. 274, 1906 R.I. LEXIS 3 (1906).

Second Levy.

Second levy of execution, made within the six-month period, was effective to preserve the original attachment, despite the fact that the first levy sale was void for irregularities and that officer at first sale had acknowledged receipt of purchase money. East Greenwich Inst. for Sav. v. Allen, 22 R.I. 337 , 47 A. 885, 1901 R.I. LEXIS 8 (1901).

Abandonment of first levy of execution because sale thereon was void for irregularities did not release attachment lien, and second levy before return day thereof was valid. East Greenwich Inst. for Sav. v. Allen, 22 R.I. 337 , 47 A. 885, 1901 R.I. LEXIS 8 (1901).

Stay of Execution.

A stay of execution will not of itself discharge an original attachment. Steere v. Stafford, 12 R.I. 131 , 1878 R.I. LEXIS 41 (1878).

It is questionable whether an original attachment would survive a stay of execution which continued until after expiration of the six-month period. Steere v. Stafford, 12 R.I. 131 , 1878 R.I. LEXIS 41 (1878).

9-25-24. Trustee’s affidavit as to want of notice, accident, mistake, or excusable neglect.

If any person named as the trustee of a defendant, who shall have been charged as trustee by reason of his or her default, shall make affidavit as to whether or not he or she had personal property of the defendant in his or her hands or possession at the time of the service of a writ in the action or suit upon him or her, and stating the amount or articles, if any, so in his or her hands, and that he or she failed to file an affidavit therein before he or she was charged by the court as the trustee of the defendant, either from want of actual notice of the service of the writ, or by accident, mistake, or excusable neglect, and shall give the affidavit to the officer charged with the service of the execution, who shall annex the affidavit to his or her return on the execution, or, if execution has not issued, if the person shall file the affidavit in the court in which he or she has been charged, with the clerk, if there is a clerk, otherwise with the justice thereof, and shall pay to the officer, clerk, or justice, respectively, the money paid for his or her attendance at the time of the service of the writ, and another like sum, and, in case execution has issued, shall pay to the officer the sum stated in his or her affidavit to be so in his or her hands, if any, or so much thereof as may be necessary to satisfy the execution, or, if the property in his or her hand as disclosed by his or her affidavit consists of specific articles, shall then deliver the articles to the officer, no further proceeding shall be commenced against the trustee, except as is provided in § 10-17-14 in case of a false answer or affidavit by the person summoned as trustee, and the officer shall pay the money paid to him or her by the trustee to the plaintiff, or take the specific articles on the execution.

History of Section. C.P.A. 1905, § 623; G.L. 1909, ch. 303, § 21; G.L. 1923, ch. 353, § 21; G.L. 1938, ch. 552, § 21; G.L. 1956, § 9-25-24 ; P.L. 1965, ch. 55, § 43; P.L. 1997, ch. 326, § 72.

Cross References.

Failure of trustee to render account, § 10-17-15 .

NOTES TO DECISIONS

Mistake.

The word “mistake” as used in this section is construed liberally in favor of the garnishee so as to prevent injustice. Marshall v. McCormick, 27 R.I. 357 , 62 A. 212, 1905 R.I. LEXIS 93 (1905).

Where, in a hearing on the garnishee’s motion to vacate the charge against him, the garnishee testified without contradiction that he had informed the officer serving the writ that it was the defendant’s son and not the defendant who worked for him and, upon being so informed, counsel for plaintiff directed the officer to leave the writ nevertheless, that he had never possessed funds or personal estate of the defendant, and that his failure to file a sworn written account as provided in § 10-17-2 was due to the fact that he was under the impression he was not required to do so under such circumstances, the court was warranted in vacating the charge notwithstanding the fact that the garnishee’s mistake was one of law rather than of fact. Ferestien v. De Marco, 102 R.I. 36 , 227 A.2d 788, 1967 R.I. LEXIS 641 (1967).

Officer to Whom Tender Made.

Affidavit and money or property may be tendered to officer who served the execution, if within the time allowed, even though the execution has been returned. Newton v. Newton, 54 R.I. 186 , 171 A. 920, 1934 R.I. LEXIS 42 (1934).

Other Remedies.

Garnishee who has waited an unreasonable time after return day of execution before tendering affidavit under this section may not seek a trial under former § 9-21-4 . Rondina v. Vosselman, 55 R.I. 239 , 180 A. 337, 1935 R.I. LEXIS 21 (1935).

Tender of Money and Property.

Garnishee must turn over the money and property in his hands in order to be discharged under this section. Greene v. Williams, 21 R.I. 100 , 41 A. 1005, 1898 R.I. LEXIS 23 (1898).

Time Allowed for Compliance.

Where a garnishee has neglected to file an account, action will not lie against him before the return day of the execution against the principal defendant. Grant v. New York Life Ins. Co., 24 R.I. 11 , 51 A. 1046, 1902 R.I. LEXIS 8 (1902).

Garnishee served with execution one day before return day was allowed to file the affidavit within a reasonable time, even though return day had passed and execution had been returned. Newton v. Newton, 54 R.I. 186 , 171 A. 920, 1934 R.I. LEXIS 42 (1934).

9-25-25. Execution against real estate held in partnership name.

Whenever a writ of execution is issued by the superior court or district court against real estate, title to which is held in the name of a partnership, the writ shall include, among other things, the name of the partnership.

History of Section. P.L. 1985, ch. 93, § 1.

Chapter 26 Levy and Sale on Execution

9-26-1. “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, § 9-26-1 .

Comparative Legislation.

Levy and sale:

Conn. Gen. Stat. § 52-350a et seq.

Mass. Ann. Laws ch. 235, § 28 et seq.

NOTES TO DECISIONS

Assignee for Benefit of Creditors.

The word “trustee” does not include an assignee for the 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).

9-26-2. Duty to execute and return writs.

Every officer to whom a writ of execution or other judicial writ shall be lawfully issued shall execute the mandates therein contained as commanded, and shall make returns of his or her doings thereon. If he or she is unable to execute the mandates, he or she shall set forth the reason of his or her failure in his or her return.

History of Section. C.P.A. 1905, § 624; G.L. 1909, ch. 304, § 1; G.L. 1923, ch. 355, § 1; G.L. 1938, ch. 553, § 1; G.L. 1956, § 9-26-2 .

Cross References.

Bill of lading restrictions, § 6A-7-602 .

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

Fees for service of execution, § 9-29-9 .

Lands ceded to United States, service of process on, § 42-1-2 .

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

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

Warehouse receipt, attachment, § 6A-7-602 .

9-26-3. Body of deceased person exempt.

The body of a deceased person shall not be liable to be taken for debt or damages on execution or upon any process whatsoever; and if any officer shall, under color of an execution or process, seize or take the body of any deceased person for debt or damages, he or she shall be fined not exceeding five hundred dollars ($500) or be imprisoned not exceeding six (6) months.

History of Section. C.P.A. 1905, § 625; G.L. 1909, ch. 304, § 2; G.L. 1923, ch. 355, § 2; G.L. 1938, ch. 553, § 2; G.L. 1956, § 9-26-3 .

9-26-4. Property exempt from attachment.

The following goods and property shall be exempt from attachment on any warrant of distress or on any other writ, original, mesne, or judicial:

  1. The necessary wearing apparel of a debtor or of the debtor’s family, if he or she has a family.
  2. The working tools of a debtor necessary in the debtor’s usual occupation, not exceeding in value the sum of two thousand dollars ($2,000), and the professional library of any professional person in actual practice.
  3. The household furniture, clothing, and family stores of a debtor, including beds and bedding, not exceeding in value the sum of nine thousand six hundred dollars ($9,600).
  4. The bibles, school books, and other books in use in the family, not exceeding in value the sum of three hundred dollars ($300).
  5. The debtor’s interest in one lot or right of burial, as the case may be, in any cemetery.
  6. Wages due or accruing to any sailor.
  7. Debts secured by bills of exchange or negotiable promissory notes.
    1. The entire salary or wages of any debtor due or payable from any charitable corporation, or from any person or corporation engaged in the disbursement or administration of any public charitable fund or money, whenever the salaries or wages are to be paid or supplied, directly or indirectly, from any fund or money appropriated or contributed for the relief of the poor or in aid of unemployment, and the debtor is the object of the relief or aid.
    2. The entire wages or salary of any debtor due or payable from any employer, where the debtor has been the object of relief from any state, federal, or municipal corporation or agency for a period of one year from and after the time when the debtor ceases to be the object of such relief.
    3. The salary or wages due or payable to any other debtor, not exceeding the sum of fifty dollars ($50.00).
  8. The salary and wages of the wife and the minor children of any debtor.
  9. Such other property, real, personal, or mixed, in possession or actions as is or shall be exempted from attachment and execution, either permanently or temporarily, by general or special acts, charters of incorporation, or by the policy of the law.
  10. An individual retirement account or individual retirement annuity as defined in the Internal Revenue Code, 26 U.S.C. §§ 408 and 408A, and the payments or distributions from such an account or annuity, except that this exemption does not apply to any of the following:
    1. An order of a court pursuant to a judgment of divorce or separate maintenance.
    2. An order of a court concerning child support.
    3. Contributions to an individual retirement account, or premiums on an individual retirement annuity, including the earnings or benefits from those contributions or premiums that constitute an excess contribution within the meaning of Section 4973 of the Internal Revenue Code, [26 U.S.C. § 4973].
  11. The right or interest of a person in an annuity, pension, profit sharing, or other retirement plan protected by the Employee Retirement Income Security Act of 1974, Public Law 93-406, 29 U.S.C. § 1001 et seq. This exemption shall also apply to the operation of the Federal Bankruptcy Code, as permitted by 11 U.S.C. § 522(d)(10)(E). This exemption shall not apply to the right or interest of a person in an annuity, pension, profit sharing, or other retirement plan to the extent that that right or interest is subject to any of the following:
    1. An order of the court pursuant to a judgment of divorce or separated maintenance.
    2. An order of a court concerning child support.

      This exemption shall not apply to contributions to, and the earnings of, any of the retirement plans enumerated in this subdivision that are not qualified retirement plans as defined by the Internal Revenue Code, 26 U.S.C. § 401.

  12. Any and all motor vehicles owned by the debtor not to exceed an aggregate total of twelve thousand dollars ($12,000).
  13. Any and all jewelry owned by the debtor not to exceed an aggregate total of two thousand dollars ($2,000).
  14. An account balance, right, or interest of a person in a “prepaid tuition program” or a “tuition savings program” as defined in § 16-57-3(10) and (16), respectively. This exemption shall not apply to a balance, right, or interest to the extent that the balance, right, or interest is subject to any of the following:
    1. An order of a court pursuant to a judgment of divorce or separate maintenance;
    2. An order of a court concerning child support.
  15. In addition to the exemptions herein, a debtor in bankruptcy may exempt an additional six thousand five hundred dollars ($6,500) in any assets.
  16. The real property of any person having debts secured by casino-issued lines of credit, also known as “casino markers,” that are issued to casino patrons by the casino credit  department or other department or agency of the casino.

History of Section. C.P.A. 1905, § 601; G.L. 1909, ch. 302, § 5; G.L. 1923, ch. 352, § 5; P.L. 1932, ch. 1887, § 1; P.L. 1937, ch. 2532, § 1; G.L. 1938, ch. 557, § 1; impl. am. P.L. 1939, ch. 660, § 80; P.L. 1951, ch. 2749, § 1; P.L. 1952, ch. 3032, § 1; G.L. 1956, § 9-26-4 ; P.L. 1966, ch. 139, § 1; P.L. 1981, ch. 376, § 1; P.L. 1985, ch. 428, § 1; P.L. 1989, ch. 347, § 1; P.L. 1999, ch. 333, § 1; P.L. 2001, ch. 264, § 1; P.L. 2001, ch. 364, § 1; P.L. 2008, ch. 292, § 1; P.L. 2013, ch. 503, § 1; P.L. 2014, ch. 502, § 4; P.L. 2014, ch. 529, § 1.

Compiler’s Notes.

P.L. 2014, ch. 502, § 1, and P.L. 2014, ch. 529, § 1 enacted nearly identical amendments to this section.

Cross References.

Attachment against insurers in receivership, § 27-14.4-16 .

Consumers’ co-operative membership, exemption, § 7-8-25 .

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

Housing authority property, exemption, § 45-27-14 .

Merchant marine, extension of clause 7 to, § 30-22-2 .

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

Public assistance not subject to process, § 40-6-14 .

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

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

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

Federal Act References.

The bracketed United States Code reference in subdivision (11)(iii) was inserted by the compiler.

NOTES TO DECISIONS

Applicability.

This section does not permit a debtor to exempt property solely because it is by its nature exempt from creditor process at common law. Howe v. Richardson (In re Howe), 232 B.R. 534, 1999 Bankr. LEXIS 266 (B.A.P. 1st Cir.), aff'd, 193 F.3d 60, 1999 U.S. App. LEXIS 25212 (1st Cir. 1999).

Where debtors in Chapter 7 bankruptcy claimed a boat as an exempt asset under R.I. Gen. Laws § 9-26-4(13) , which provided an exemption for a “motor vehicle,” the bankruptcy court held that “motor vehicle” as used in R.I. Gen. Laws § 9-26-4(13) referred to vehicles that traveled on land; if the General Assembly intended to include things marine in the exemption statute, it would have said so, rather than being silent on the subject. In re Barbera, 285 B.R. 355, 2002 Bankr. LEXIS 1527 (Bankr. D.R.I. 2002).

Alternative Remedies.

Writ of attachment or sequestration could not be had to hold notes or trade acceptances subject to tort claim. Martin v. James B. Berry Sons' Co., 83 F.2d 857, 1936 U.S. App. LEXIS 2663 (1st Cir. 1936).

Creditor’s bill in equity under § 9-28-1 could not reach a debt secured by a promissory note. Berard v. Blais, 56 R.I. 431 , 186 A. 475, 1936 R.I. LEXIS 117 (1936).

Debts Secured by Bills or Notes.

A debt secured by a negotiable promissory note is exempt, even though the note is overdue. Oakdale Mfg. Co. v. Clarke, 29 R.I. 192 , 69 A. 681, 1908 R.I. LEXIS 36 (1908).

Furniture and Family Stores.

An automobile stored in the driveway of the defendant’s father-in-law was not exempt as family stores of a housekeeper. Personal Fin. Co. v. Franco, 72 R.I. 85 , 48 A.2d 355, 1946 R.I. LEXIS 50 (1946).

Debtor who had maintained a house in Rhode Island, but whose furniture was in storage pending removal to another state, qualified as a housekeeper where the period of storage was not unduly long. Arch Lumber Co. v. Dohm, 80 R.I. 69 , 81 R.I. 69 , 98 A.2d 840, 1953 R.I. LEXIS 13 (1953).

Individual Retirement Accounts.

R.I. Gen. Laws § 9-26-4(11) permits a debtor to claim an exemption for an inherited individual retirement annuity (IRA); in enacting the statute, the General Assembly clearly included IRAs as defined in any and all parts of 26 U.S.C. § 408, not just 26 U.S.C. § 408(a) and/or (b) (answering certified question from the U.S. Bankruptcy Court). In re: Kapsinow, 220 A.3d 1231, 2019 R.I. LEXIS 133 (2019).

Oral Evidence.

The facts under which debtor is entitled to exemption from attachment could be proved by oral evidence on debtor’s motion to discharge garnishee. McKenna v. Lucas, 21 R.I. 509 , 45 A. 101, 1900 R.I. LEXIS 3 (1900).

Persons Entitled to Claim Exemption.

The exemption of the debtor’s working tools cannot be claimed by this mortgagee if not claimed by the debtor. Sherrible v. Chaffee, 17 R.I. 195 , 21 A. 103, 1890 R.I. LEXIS 75 (1890).

Policy of the Law.

Life insurance policy was not exempt from attachment by the policy of the law. Rhode Island Nat'l Bank v. Chase, 16 R.I. 37 , 12 A. 233, 1887 R.I. LEXIS 79 (1887).

Children’s playthings of an ordinary nature were exempt by policy of the law. Arch Lumber Co. v. Dohm, 80 R.I. 69 , 81 R.I. 69 , 98 A.2d 840, 1953 R.I. LEXIS 13 (1953).

Property Not Reached by Process.

Life insurance policy was included in an assignment for benefit of creditors of all property not exempt from attachment. Rhode Island Nat'l Bank v. Chase, 16 R.I. 37 , 12 A. 233, 1887 R.I. LEXIS 79 (1887).

Salary and Wages.

Debtor was entitled to exemption on each writ served, whether by original or mesne process. Palmisciano v. Rapone, 38 R.I. 10 , 94 A. 852, 1915 R.I. LEXIS 52 (1915).

Supervision by Court.

Trial court, having decided that debtor was entitled to certain exemptions, had further duty to supervise subsequent proceedings to see that specific items taken by plaintiff carried out the provisions of law. Arch Lumber Co. v. Dohm, 80 R.I. 69 , 81 R.I. 69 , 98 A.2d 840, 1953 R.I. LEXIS 13 (1953).

Time of Claiming Exemption.

Debtor who claimed exemption before garnishee’s affidavit had been fully completed and before garnishee had been charged for any amount, was not guilty of laches by reason of not appearing in the action and taking a default judgment. McKenna v. Lucas, 21 R.I. 509 , 45 A. 101, 1900 R.I. LEXIS 3 (1900).

Wearing Apparel.

Wearing apparel not in the nature of luxury was exempt, even though the debtor had gotten along for several months without it. Arch Lumber Co. v. Dohm, 80 R.I. 69 , 81 R.I. 69 , 98 A.2d 840, 1953 R.I. LEXIS 13 (1953).

Working Tools.

Tools which are reasonably necessary for the prosecution of the debtor’s occupation advantageously and usefully are exempt, even though they are not tools without which the debtor could not prosecute his occupation at all. Healy v. Bateman, 2 R.I. 454 , 1853 R.I. LEXIS 19 (1853).

The professional library of a lawyer was not within the term “working tools”. In re Church, 15 R.I. 245 , 2 A. 761, 1886 R.I. LEXIS 6 (1886).

Evidence that plaintiff had furnished debtor with lumber to be used in constructing houses justified a finding that carpenter tools belonging to the debtor were exempt. Arch Lumber Co. v. Dohm, 80 R.I. 69 , 81 R.I. 69 , 98 A.2d 840, 1953 R.I. LEXIS 13 (1953).

Collateral References.

Assignee of insurance policy, exemption of proceeds as available to. 1 A.L.R.2d 1031.

Attorney, library of, as exempt. 2 A.L.R. 831; 9 A.L.R. 1020; 36 A.L.R. 669; 52 A.L.R. 826.

Availability of debtor’s exemption to defeat counterclaim or setoff. 106 A.L.R. 1070.

Constitutionally permissible classification or discrimination in debtor’s exemption statutes. 128 A.L.R. 107.

Construction and application of exemption for firearms under state law. 46 A.L.R.6th 401.

Construction and application of state exemptions for health aids. 100 A.L.R.6th 251.

Debtor’s exemption of personalty as attaching to proceeds of sale or exchange thereof. 119 A.L.R. 467.

Debtor’s exemption (other than homestead) as applicable in favor of nonresident. 119 A.L.R. 554.

Deposit of wages, effect of. 67 A.L.R. 1204.

Effect of anti-alienation provisions of Employee Retirement Income Security Act (29 USCS § 1056(d)) (ERISA) on rights of judgment creditors. 131 A.L.R. Fed. 427.

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.

Exemption of motor vehicles, as tools, instruments, implements, etc., from seizure for debt. 37 A.L.R.2d 714.

Exemption of proceeds of National Service Life Insurance from claims of creditors. 54 A.L.R.2d 1335.

Fines, penalties, and costs, effect of exemptions as against. 10 A.L.R. 770.

Forfeiture of homestead based on criminal activity conducted on premises — state cases. 16 A.L.R.5th 855.

Individual retirement accounts as exempt property in bankruptcy. 133 A.L.R. Fed. 1.

Jewelry and Clothing as Within Debtor’s Exemptions under State Statutes. 44 A.L.R.6th 481.

Judgment under which exempt property has been seized, setoff or counterclaim of, against claim based on the wrongful seizure. 20 A.L.R. 276.

Judgments, setoff as between, as affected by exemption laws. 121 A.L.R. 501.

Laches or delay as waiver of, or estoppel to assert, debtor’s exemption. 82 A.L.R. 648.

Landlord’s distress for rent, implements of trade as privileged from. 62 A.L.R. 1118.

Landlord’s lien for rent, exemption of tools, implements, etc., as against. 9 A.L.R. 300; 96 A.L.R. 249.

Law of domicile or place of ancillary administration as governing exemption rights of debtors of decedent. 124 A.L.R. 1287.

Radio as within debtor’s exemptions. 62 A.L.R. 1028.

Retainer by personal representative of indebtedness, of heir, legatee or distributee as affected by right to exemption. 1 A.L.R. 1030; 30 A.L.R. 775; 75 A.L.R. 878; 110 A.L.R. 1384; 164 A.L.R. 717.

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

Right, with respect to exempt proceeds of life insurance, of one whose funds have been wrongfully used to pay premiums. 24 A.L.R.2d 672.

Rights of creditors of life insured as to options or other benefits available to him during his lifetime. 37 A.L.R.2d 268.

Validity, construction, and application of state exemption statutes for proceeds of personal injury or wrongful death lawsuits. 99 A.L.R.6th 481.

Validity of contract waiving exemption of wages. 94 A.L.R.2d 967.

Validity of contractual stipulation or provision waiving debtor’s exemption. 94 A.L.R.2d 967.

Validity of statute reducing or abolishing exemption as against particular classes of claims. 6 A.L.R. 1140.

Voluntary disposition of part of the larger sum, or some of the articles of the exempted class, as affecting debtor’s limited exemption. 81 A.L.R. 922.

Waiver, estoppel, loss or destruction of exemption. 63 A.L.R. 1295.

War savings bonds purchased with, or deducted from, exempt wages or salary, debtor’s exemption in respect of. 150 A.L.R. 446.

What are “tools,” “implements,” “instruments,” “utensils,” or “apparatus.” 2 A.L.R. 818; 9 A.L.R. 1020; 36 A.L.R. 669; 52 A.L.R. 826.

Wife as head of family within property exemption provision. 67 A.L.R.2d 779.

9-26-4.1. Homestead estate exemption.

  1. In addition to the property exempt from attachment as set forth in § 9-26-4 , an estate of homestead to the extent of five hundred thousand dollars ($500,000) in the land and buildings, or personal property that the owner uses as a residence, may be acquired pursuant to this section by an owner of a home or an individual who rightfully possesses the premises by lease, as a life tenant, as a beneficiary of a revocable or irrevocable trust or otherwise, and who occupies or intends to occupy the home as his or her principal residence. The estate of homestead provided pursuant to this section shall be automatic by operation of law, and without any requirement or necessity for the filing of a declaration, a statement in a deed, or any other documentation. The estate shall be exempt from the laws of attachment, levy on execution, and sale for payment of debts or legacies, except in the following cases:
    1. Sale for taxes, sewer liens, water liens, lighting district assessments, and fire district assessments;
    2. For a debt contracted prior to the acquisition of the estate of homestead;
    3. For a debt contracted for the purchase of the home;
    4. Upon an order issued by the family court to enforce its judgment that a spouse pay a certain amount weekly or otherwise for the support of a spouse or minor children;
    5. Where a building or buildings are situated on land not owned by the owner of a homestead estate are attached, levied upon or sold for the ground rent of the lot upon which the building or buildings are situated;
    6. For a debt due to, or a lien in favor of, the department of human services and/or the state of Rhode Island for reimbursement of medical assistance, as provided for in § 40-8-15 ;
    7. For a debt heretofore or hereafter owing to a federally insured deposit-taking institution or a person regulated or licensed under title 19.
  2. For the purposes of this section, “owner of a home” includes a sole owner, lessee (but only a lessee who or that was the owner of a home prior to a transfer to the lessor), joint tenant, tenant by the entirety, or tenant in common; provided, that only one individual may acquire an estate of homestead in the home for the benefit of his or her family; and provided further, that an estate of homestead may be acquired on only one principal residence for the benefit of a family. For the purposes of this section, “family” includes either a parent and child or children, a husband and wife and their children, if any, or a sole owner. The provisions of this section shall not apply to any debt owing to a regulated institution, a debt secured by a mortgage or other voluntary lien on a home, or a mechanics’ lien on the property comprising the estate as provided for under chapter 28 of title 34. Notwithstanding any other provisions of law, it shall not be necessary to record a declaration of homestead in order to take advantage of the homestead estate exemption.
  3. An estate of homestead shall be subordinate to a mortgage encumbering the home that was signed by all the owners of the home at the time of execution of said mortgage. A mortgage executed by fewer than all of the owners of a home that is subject to an estate of homestead shall be superior only to the homestead estate of the owners who are parties to the mortgage and their non-titled spouses and minor children, if any.
  4. For purposes of this chapter, a mortgage shall include an instrument granting a security interest in a manufactured home or cooperative housing unit. The subordination shall not require the signature of a spouse who is not an owner. No statement that a homestead estate shall be subordinate to the mortgage shall be required in the mortgage instrument and nothing contained in a mortgage or any document executed in connection with the mortgage shall affect or be construed to create, modify, or terminate a homestead estate, other than to subordinate it to the mortgage as aforesaid. A mortgage lender shall not require or record a release of homestead in connection with the making and recording of a mortgage.

History of Section. P.L. 1998, ch. 270, § 1; P.L. 2001, ch. 189, § 1; P.L. 2002, ch. 147, § 1; P.L. 2002, ch. 226, § 1; P.L. 2004, ch. 409, § 1; P.L. 2006, ch. 211, § 1; P.L. 2012, ch. 376, § 1; P.L. 2012, ch. 392, § 1; P.L. 2016, ch. 515, § 1.

Compiler’s Notes.

P.L. 2012, ch. 376, § 1, and P.L. 2012, ch. 392, § 1 enacted identical amendments to this section.

Law Reviews.

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

NOTES TO DECISIONS

Application.

Chapter 7 debtor’s contingent future expectancy interest in real estate was not spared by an election under 11 U.S.C.S. § 522(b)(2) and the homestead exemption under § 9-26-4.1 , where the proper valuation of the debtor’s interest in property held via a tenancy by the entirety was 100 percent. In re Ryan, 282 B.R. 742, 2002 U.S. Dist. LEXIS 16738 (D.R.I. 2002).

When a bankruptcy debtor’s mother generally devised certain real property to the debtor, in common with the debtor’s sister, in the residuary clause of the mother’s will, the debtor could claim a homestead exemption as to the debtor’s interest in the property because (1) the debtor was immediately vested with a fee simple interest, subject to defeasance, upon the debtor’s mother’s death, and (2) any need to sell the property, pursuant to R.I. Gen. Laws § 33-12-6 , did not keep title from vesting. In re Tetreault, 11 A.3d 635, 2011 R.I. LEXIS 4 (2011).

When a bankruptcy debtor’s mother generally devised certain real property to the debtor, in common with the debtor’s sister, in the residuary clause of the mother’s will, the debtor could claim a homestead exemption as to the debtor’s interest in the property because a reference to “family” in R.I. Gen. Laws § 9-26-4.1(b) did not bar the debtor from claiming the exemption as (1) the debtor was an “owner of a home” for purposes of the statute, (2) the statute was ambiguous as to the term “family,” and the general assembly did not intend to bar the eligibility of a tenant in common living alone, (3) the statute was intended to benefit tenants in common, and (4) § 9-26-4.1(b) only limited the exemption to one per family. In re Tetreault, 11 A.3d 635, 2011 R.I. LEXIS 4 (2011).

Chapter 7 debtor was permitted to avoid 3 judicial liens on property, even though the motions did not comply with a local state bankruptcy rule relating to the avoidance of liens and the calculations did not conform to a federal statute relating to avoidance of liens because, after the bankruptcy court applied correct formula, an exemption impairment amount was greater than liens. The debtor was entitled to an exemption of up to $500,000 in homestead property under state law. In re Derocha, 503 B.R. 553, 2014 Bankr. LEXIS 126 (Bankr. D.R.I. 2014).

Chapter 7 debtor was allowed under 11 U.S.C.S. § 522 to avoid a judicial lien in the amount of $79,889 that a bank placed on real property he owned because the bank’s lien impaired a homestead exemption he claimed under R.I. Gen. Laws § 9-26-4.1 . Although the debtor used the property to operate an auto repair business and as his residence, Rhode Island’s homestead exemption statute allowed homeowners to claim a homestead exemption in mixed-use property that was their primary residence, and the homeowner had obtained permission from the City of Cranston, Rhode Island, to reside on the property and was using the majority of the property for residential purposes at the time he declared bankruptcy. In re Carpenter, 559 B.R. 551, 2016 Bankr. LEXIS 4199 (Bankr. D.R.I. 2016).

Homestead Not Found.

A debtor’s bare assertion that he planned to move onto a property upon the death of the life tenant without meeting the burden of establishing such intent or showing the financial ability to do so was insufficient to sustain his burden to prove a claim of homestead exemption under R.I. Gen. Laws § 9-26-4.1(a) for his Chapter 7 case. The debtor had not lived within the state where the residence was located for several years and by moving into the residence, his commute to work was increased by two hours per day; further, there was no evidence that the co-owner consented to the debtor’s occupancy or that the co-owner would not force partition and sale. In re Franklino, 329 B.R. 363, 2005 Bankr. LEXIS 1713 (Bankr. D.R.I. 2005), aff'd, 2006 Bankr. LEXIS 4666 (1st Cir. Jan. 20, 2006).

Debtor did not qualify for the homestead exemption under R.I. Gen. Laws § 9-26-4.1(a) because he did not occupy the property, which was his former marital domicile, there was no evidence that he intended to occupy the property in the future as a primary residence, the fact that his minor daughter occupied the property was not relevant to the validity of the exemption, and Mass. Gen. Laws ch. 188, § 1, which required a writing to create and terminate a homestead exemption, was not similar to R.I. Gen. Laws § 9-26-4.1(a) . In re Sacharko, 345 B.R. 474, 2006 Bankr. LEXIS 1336 (Bankr. D.R.I. 2006), aff'd, 356 B.R. 786, 2007 Bankr. LEXIS 760 (1st Cir. 2007).

Collateral References.

Construction and Application of Bankruptcy Abuse Prevention and Consumer Protection Act’s (BAPCPA) Limitation of Homestead Exemption, 11 U.S.C. 522(p). 52 A.L.R. Fed 2d 541.

9-26-5. Exemption of police and firefighters’ pensions — Assignments invalid.

No interest of any person in any pension fund or in any pension derivable therefrom, for the benefit of police officers or firefighters, now or hereafter created or held by authority of law by any city or town, or by any public officer or officers or board of officers therein, to which fund the city or town contributes in any way, shall be subject to trustee process or liable to attachment on any writ, original, mesne, or judicial, or be taken on execution or any process, legal or equitable; and no assignment of any such interest shall be valid.

History of Section. C.P.A. 1905, § 602; G.L. 1909, ch. 302, § 6; G.L. 1923, ch. 352, § 6; G.L. 1938, ch. 557, § 2; G.L. 1956, § 9-26-5 .

NOTES TO DECISIONS

Child Support.

This section was not designed to prohibit the family court from ordering a father to fulfill his support obligation, nor would such an order constitute an assignment within the meaning of the statute. Duke v. Duke, 675 A.2d 822, 1996 R.I. LEXIS 145 (1996).

Divorce.

A decision by the trial justice to simply place the pension on the scale along with the other marital assets when he weighed and divided them did not in any sense constitute an assignment within the meaning of this statute. Stevenson v. Stevenson, 511 A.2d 961, 1986 R.I. LEXIS 499 (1986).

A family loses its ability to spend a portion of its income when that income is deferred and placed in a pension. It would be terribly unfair to read an exemption statute, which was created to protect a pension for the benefit of a retired employee’s family, in such a way that the exemption would bar children or a former spouse from receiving support from the very fund created for their benefit, and would once again deny them the benefits of the income they sacrificed to a pension years before. Moran v. Moran, 612 A.2d 26, 1992 R.I. LEXIS 166 (1992).

The trial master erred by considering the spouse’s disability pension from a city a marital asset and, therefore, erred by awarding the wife 65% of the monthly benefits, as the husband’s firemen’s disability pension was statutorily exempt under this section. Thompson v. Thompson, 642 A.2d 1160, 1994 R.I. LEXIS 192 (1994).

The provisions of this section cannot operate to preclude a police officer’s pension from being considered a marital asset for purposes of property division upon divorce; the pension is analogous in form to a forced savings account to which the employee and his family deferred compensation for the purpose of their future financial security, and it is therefore considered marital property subject to division along with the employee’s other assets. The same rationale applies with respect to firefighters’ pensions. Duke v. Duke, 675 A.2d 822, 1996 R.I. LEXIS 145 (1996).

This section did not preclude the court from awarding to wife an interest in the retirement portion of her husband’s disability pension because the antiattachment statute is designed to protect pension funds from creditors and not from the families of employees. Allard v. Allard, 708 A.2d 554, 1998 R.I. LEXIS 110 (1998).

Payroll Deductions.

Money which had been deducted from the salary of a former city employee and paid into the pension fund constitutes an interest in such fund as will exclude it from attachment and the person for whose benefit it exists need not personally claim the right to such exemption. Warwick Mun. Employees Credit Union v. Berard, 90 R.I. 317 , 157 A.2d 818, 1960 R.I. LEXIS 16 (1960).

Collateral References.

Deposit of pension funds, effect of. 67 A.L.R. 1205.

Impairing obligation of contract by exemption of pensions or property purchased therewith. 93 A.L.R. 184.

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

9-26-6. Setoff of executions.

If any officer shall, at the same time, have two or more executions delivered to him or her to serve, in which the parties shall be reversed, and shall sue and be sued in the same right and capacity, he or she shall set off the debts or damages in the actions and levy and collect the balance only that shall remain due thereon, with the costs on all the executions.

History of Section. C.P.A. 1905, § 626; G.L. 1909, ch. 304, § 3; G.L. 1923, ch. 355, § 3; G.L. 1938, ch. 553, § 3; G.L. 1956, § 9-26-6 ; P.L. 1997, ch. 326, § 73.

NOTES TO DECISIONS

Pending Lawsuit.

Defendant against whom separate judgment had been entered could not have execution stayed pending action brought by him, jointly with others, against plaintiff. Hopkins v. Drowne, 21 R.I. 80 , 41 A. 1010, 1898 R.I. LEXIS 30 (1898).

9-26-7. Mortgaged personal property.

Personal estate, when mortgaged and in the possession of the mortgagor, and while the mortgage is redeemable either at law or in equity, may be levied on by execution against the mortgagor in the same manner as on his or her unincumbered personal estate.

History of Section. C.P.A. 1905, § 627; G.L. 1909, ch. 304, § 4; G.L. 1923, ch. 355, § 4; G.L. 1938, ch. 553, § 4; G.L. 1956, § 9-26-7 .

NOTES TO DECISIONS

When Attachable.

The right to attach mortgaged property after condition broken was not limited to the period set out by former § 34-24-3 but extended to the entire period when the mortgagor might have redeemed in equity. Anthony, Potter & Co. v. Shaw, 7 R.I. 275 , 1862 R.I. LEXIS 24 (1862).

Collateral References.

Propriety of setting minimum or “upset price” for sale of property at judicial foreclosure. 4 A.L.R.5th 693.

9-26-8. Sale of mortgaged property.

When levied on, whether by virtue of an attachment or otherwise, mortgaged property shall be sold by the officer as in other cases of levies on personal property on executions.

History of Section. C.P.A. 1905, § 628; G.L. 1909, ch. 304, § 5; G.L. 1923, ch. 355, § 5; G.L. 1938, ch. 553, § 5; G.L. 1956, § 9-26-8 .

NOTES TO DECISIONS

Mortgage.

Sale of property under this section is free of, rather than subject to, the mortgage. Zimmerman v. Andrews, 51 R.I. 204 , 153 A. 307, 1931 R.I. LEXIS 12 (1931).

Collateral References.

Propriety of setting minimum or “upset price” for sale of property at judicial foreclosure. 4 A.L.R.5th 693.

9-26-9. Proceeds of sale of mortgaged property.

The proceeds of the sale shall be applied to the payment of the amount due on the mortgage, with such deduction for interest for the anticipated payment, or allowance for damages for such anticipated payment, as may be ascertained and allowed by the court to which the execution is returnable, and the balance shall be applied to the payment of the amount due on the execution.

History of Section. C.P.A. 1905, § 629; G.L. 1909, ch. 304, § 6; G.L. 1923, ch. 355, § 6; G.L. 1938, ch. 553, § 6; G.L. 1956, § 9-26-9 .

NOTES TO DECISIONS

Disputed Claims.

Court did not have summary jurisdiction to grant an order to a claimant of a disputed lien to have his claim paid out of proceeds of sale. Groton Mfg. Co. v. Rhode Island Dairy Co., 11 R.I. 129 , 1875 R.I. LEXIS 9 (1875).

Expenses of Sale.

Full amount received on sale is to be applied on mortgage, without any deduction for expenses of sale, if sum realized is less than the mortgage debt. McKenna Bros. v. Brown, 29 R.I. 339 , 71 A. 450, 1908 R.I. LEXIS 65 (1908).

Remedies of Mortgagee.

Mortgagee could maintain an action at law against the sheriff for proceeds of the sale. Fournier v. Wilson, 19 R.I. 15 , 31 A. 306, 1893 R.I. LEXIS 86 (1893).

Mortgagee could maintain bill in equity to compel sheriff to pay over proceeds of sale where the sheriff was threatening to pay proceeds to execution creditor. Zimmerman v. Andrews, 51 R.I. 204 , 153 A. 307, 1931 R.I. LEXIS 12 (1931).

Right of Mortgagee to Proceeds.

Mortgagee with prior recorded mortgage leaving possession in mortgagor had right to proceeds of sale under a subsequent execution, up to amount of mortgage. Zimmerman v. Andrews, 51 R.I. 204 , 153 A. 307, 1931 R.I. LEXIS 12 (1931).

9-26-10. Redemption of mortgaged property by plaintiff in execution.

In case of such levy, the plaintiff in execution may redeem the mortgaged property in the same manner as the mortgagor might have done, and upon the redemption 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, § 630; G.L. 1909, ch. 304, § 7; G.L. 1923, ch. 355, § 7; G.L. 1938, ch. 553, § 7; G.L. 1956, § 9-26-10 .

9-26-11. Attachment void unless mortgage redeemed or property sold.

If the mortgage is not redeemed by the plaintiff or sold as provided in § 9-26-8 , before the time of redemption expires, the attachment shall become void.

History of Section. C.P.A. 1905, § 631; G.L. 1909, ch. 304, § 8; G.L. 1923, ch. 355, § 8; G.L. 1938, ch. 553, § 8; G.L. 1956, § 9-26-11 ; P.L. 1997, ch. 326, § 23.

9-26-12. Retention of goods levied on by officer — Perishable goods.

In all cases when execution shall be levied on any goods or chattels, the goods and chattels shall be kept in the possession of the officer and shall be advertised at least ten (10) days before they shall be exposed and offered for sale, in order that the person who owned the goods or chattels may, if he or she think fit, pay the money due, together with the costs which shall have accrued thereon, and thereupon have his or her goods or chattels restored to him or her again; provided, that if the goods and chattels shall be of a quickly perishable nature, the officer levying execution thereon shall immediately notify the defendant or his or her agent thereof, and may obtain an order from the court, or any justice thereof, issuing the execution, to sell the goods and chattels at such time and in such manner as the court or justice may prescribe, and the order may be obtained at any time. Such an order to the officer may also be obtained by either party or his or her agent.

History of Section. C.P.A. 1905, § 632; G.L. 1909, ch. 304, § 9; G.L. 1923, ch. 355, § 9; G.L. 1938, ch. 553, § 9; G.L. 1956, § 9-26-12 .

Cross References.

Effect of assignment for benefit of creditors, § 10-4-6 .

NOTES TO DECISIONS

Advertising of Property Prior to Sale.

Pursuant to this section, before property can be sold to satisfy a judgment lien, the officer must advertise the property at least ten days prior to the proposed sale. During this period, the debtor has the right to pay the debt and have the property returned. In re Rivet, 125 B.R. 704, 1991 Bankr. LEXIS 471 (Bankr. D.R.I. 1991).

Debtor’s Right to Redeem Property.

Under Rhode Island law, even after seizure, the debtor still has the statutory right to pay the amount due the creditor and to have the property returned, any time before the property is sold. This right to redeem is a property interest that is protected by 11 U.S.C. § 542 of the federal Bankruptcy Code. In re Hugo Key & Son, Inc., 129 B.R. 322, 1991 Bankr. LEXIS 1029 (Bankr. D.R.I. 1991).

Due Process.

The procedures undertaken by the plaintff, such as seeking to enforce by writ of execution terms and provisions of the foreign default judgment, afforded the defendants more than adequate due process. Pezzello Bros. Fruit & Produce Co. v. Armenakes, 677 A.2d 907, 1996 R.I. LEXIS 181 (1996).

Collateral References.

Duty of sheriff or other officer as to care of property levied upon by him. 138 A.L.R. 710.

Receiver’s right to take property in summary manner from sheriff holding it under levy. 40 A.L.R. 913; 43 A.L.R. 1340.

9-26-13. Sale at auction — Surplus proceeds.

In case the owner shall not redeem them as provided in § 9-26-12 , and in case they are not sold under special order, the officer shall sell the goods or chattels at public auction to the highest bidder, and in any case if any surplus shall remain after the debt or damages and costs and charges are paid, the surplus shall be delivered by the officer to the owner or to any person legally qualified on his or her behalf to receive the surplus.

History of Section. C.P.A. 1905, § 633; G.L. 1909, ch. 304, § 10; G.L. 1923, ch. 355, § 10; G.L. 1938, ch. 553, § 10; G.L. 1956, § 9-26-13 ; P.L. 1997, ch. 326, § 23.

Cross References.

Exemption from closing out sales law, § 6-14-15 .

Fees for auction sales, § 9-29-9 .

Intoxicating liquors, sale on execution, § 3-1-4 .

NOTES TO DECISIONS

Advertisement of Sale.

Error in the advertisement of the sale is good cause for adjournment. Reynolds v. Hoxsie, 6 R.I. 463 , 1860 R.I. LEXIS 16 (1860).

Purchaser’s Refusal to Pay.

Where the purchaser at the execution sale refused to pay, the sheriff could not maintain an action for the price but must resell and then could bring an action against the original purchaser for any loss. Gerardi v. Caruolo, 27 R.I. 214 , 61 A. 599, 1905 R.I. LEXIS 73 (1905).

Collateral References.

Appearance to attack execution sale as submission to jurisdiction. 111 A.L.R. 938.

Collateral attack on judicial and execution sales, grounds of. 1 A.L.R. 1431.

Commissions or expenses allowed where judicial sale is vacated and resale ordered. 19 A.L.R. 178.

Conditional bid at judicial or execution sale. 104 A.L.R. 632.

Contempt by judicial sale of property pending receivership. 39 A.L.R. 22; 48 A.L.R. 241.

Doctrine of caveat emptor as applied to purchaser at judicial sale. 68 A.L.R. 659.

Effect of reversal or vacation of judgment on execution sale. 29 A.L.R. 1071.

Enforceability as between the parties of agreement to purchase property at judicial sale for their joint benefit. 14 A.L.R.2d 1267.

Pledgee’s right to purchase subject of pledge at judicial sale. 76 A.L.R. 715; 37 A.L.R.2d 1381.

Power of court as condition of confirmation of judicial sale to require successful bidder to increase his bid. 105 A.L.R. 366.

Presence of chattels at place of sale as condition of judicial or execution sale. 69 A.L.R. 1194.

Priority right of creditor who institutes supplementary proceedings over other creditors in respect of proceeds of judicial sale. 92 A.L.R. 1435; 153 A.L.R. 211.

Public sale, what constitutes. 4 A.L.R.2d 575.

Removal, resignation, or expiration of term of sheriff or similar public officer as affecting validity of sale subsequently made by him. 10 A.L.R. 1341.

Right of officer conducting sale under execution to refuse to accept bid because inadequate. 110 A.L.R. 1077.

Right of purchaser at judicial sale made subject to a purported lien to question validity thereof. 75 A.L.R. 1370; 171 A.L.R. 302.

Time of issuing writ as ground of collateral attack on execution sales. 1 A.L.R. 1437.

9-26-14. Recording of execution against real estate.

Whenever execution is to be levied upon real estate or any interest therein, the officer charged with the service of the execution shall file with the recorder of deeds, if any, or with the town clerk or the city clerk of the town or city in which the real estate shall lie, a copy of the execution, with his or her doings thereon, together with a description of the real estate or interest therein to be so levied upon, and the recorder of deeds, if any, or the town clerk or city clerk shall note upon the copy of the execution the exact time, as nearly as may be, when the execution was filed in his or her office, and shall also enter in a book, to be kept by him or her for that purpose, the names of all the parties in the execution, including the name of any partnership set forth in the writ where any real property of a defendant whose property is being levied upon is held in a partnership name, the amount of the judgment, the time when the copy was filed in his or her office, and the name of the court to which and the time when the execution is returnable, and shall be entitled to demand and to receive from the officer a fee of fifty cents ($.50) in each case.

History of Section. C.P.A. 1905, § 635; G.L. 1909, ch. 304, § 12; G.L. 1923, ch. 355, § 11, 12; P.L. 1932, ch. 1905, § 1; P.L. 1933, ch. 2032, § 1; G.L. 1938, ch. 553, § 11; G.L. 1956, § 9-26-14 ; P.L. 1985, ch. 93, § 2.

NOTES TO DECISIONS

Levy.

Under the former statute, no particular form or ceremony was required in connection with the levy of execution or the doing of any particular thing or act to constitute such levy. Lynch v. Earle, 18 R.I. 531 , 28 A. 763, 1894 R.I. LEXIS 9 (1894).

Real Estate Description.

The requirements of this section and § 9-26-15 are fulfilled if the officer levying execution, in filing with the clerk or recorder, annexes a description of the real estate, even though he annexes the statement sometime after filing; but the better practice would be to put the statement on the levy itself when made. Romoli v. Motta, 59 R.I. 201 , 194 A. 733, 1937 R.I. LEXIS 150 (1937).

Collateral References.

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

9-26-15. Recording effective as levy.

The filing of the copy of the execution with the recorder of deeds, if any, or with the town clerk or city clerk, as provided in § 9-26-14 , shall constitute and be deemed a good and sufficient levy upon the real estate or any interest therein so described upon the copy of the execution.

History of Section. G.L. 1923, ch. 355, § 12; P.L. 1932, ch. 1905, § 1; P.L. 1933, ch. 2032, § 1; G.L. 1938, ch. 553, § 12; G.L. 1956, § 9-26-15 .

Cross References.

Mill or milldam, judgment for damages, §§ 46-18-10 , 46-18-11 .

9-26-16. Advertisement and sale of real estate levied on — Disposition of proceeds.

  1. The officer shall give public notice of the levy and of the intended sale of the real estate or interest therein under the levy: first by mailing by certified mail return receipt requested to the record owner of the real estate as of the date sixty (60) days prior to the scheduled sale date, including the day of the mailing in the computation, without reference to any adjournment, continuation, or postponement of the sale, at the address of the real estate and, if different, at the owner’s address listed with the tax collector’s office of the city or town where the real estate is situated as of such date at least twenty (20) days prior to first publishing the notice, including the day of the mailing in the computation; second by causing an advertisement thereof to be published once a week for the space of three (3) weeks next before the time of the sale in some public newspaper published in the county where the real estate lies, and if no such public newspaper is published therein, then in some public newspaper published daily in the city of Providence; and third by mailing written notice of the time and place of the sale by certified mail return receipt requested to all persons who have recorded a mortgage, attachment, lien, or any other encumbrance relating to the real estate under the levy which is junior or subordinate to the levy at the address, if any, of the holder of the mortgage, attachment, lien, or other encumbrance as set forth in the recorded instrument or to the address of the holder’s attorney as set forth in the recorded mortgage, attachment, lien, or other encumbrance at least fourteen (14) days prior to the scheduled sale date, without regard to any adjournment, continuation, or postponement of the sale. If no such address shall be set forth in the mortgage, attachment, lien, or other encumbrance or if the instrument shall not have been recorded more than thirty (30) days prior to the scheduled sale date, without reference to any adjournment, continuation, or postponement of the sale, no such notice need be mailed to the holder of any such mortgage, attachment, lien, or other encumbrance. If any such notice is so mailed but is undeliverable to the owner or the holder, is refused by the owner or the holder, is unclaimed by the owner or the holder, or if the owner’s or holder’s forwarding notice shall have expired, or if the notice shall otherwise not be delivered by the United States Postal Service, the notice requirement shall be deemed satisfied. If a notice is not given prior to the sale to all persons who have recorded a mortgage, attachment, lien, or any other encumbrance relating to the levied premises, which is junior or subordinate to the execution, the encumbrance shall survive the sale for a period of one year from the date of sale unless a written notice of commencement of foreclosure proceedings of the mortgage or a written notice of intent to enforce the attachment, lien, or other encumbrance is recorded in the land evidence records in the city or town where the levied premises are located. Failure to record written notice within one year of the sale shall render the mortgage, attachment, lien, or other encumbrance, which is junior or subordinate to the execution, unenforceable. If no person redeem the real estate or interest therein before the real estate shall be exposed for sale, which sale shall not be earlier than three (3) months after levy, the officer shall sell the real estate, or so much thereof as shall be sufficient to satisfy the judgment obtained and the costs and charges, at public auction, and a deed thereof, by him or her given, shall vest in the purchaser all the estate, right, and interest which the debtor had therein at the time the estate was attached, or in case there was no attachment, all the estate, right, and interest which the debtor had at the time the levy was made, and the surplus of money that shall arise from the sale of the real estate or interest therein after satisfying the execution and the costs and charges shall be deposited with the general treasurer for the owner thereof, and shall be liable to be attached for his or her other debts.
  2. The officer shall include in the deed given an affidavit of compliance with the requirements of written notice of the sale as set forth in subsection (a).

History of Section. C.P.A. 1905, §§ 634, 637; G.L. 1909, ch. 304, §§ 11, 14; G.L. 1923, ch. 355, §§ 11, 13, 14; P.L. 1932, ch. 1905, § 1; P.L. 1933, ch. 2032, § 1; G.L. 1938, ch. 553, § 13; G.L. 1956, § 9-26-16 ; P.L. 1992, ch. 224, § 1.

Cross References.

Judicial sale of railroad, rights and liabilities of purchaser, §§ 39-6-25 , 39-6-26 .

Redemption of railroad franchise and property from sale on execution, § 39-6-24 .

NOTES TO DECISIONS

Costs.

Where costs were more than the amount realized at the sale such costs may, rather than shall, be taxed to a pluries execution. C. W. Stuart & Co. v. Sixth Dist. Court, 93 R.I. 478 , 176 A.2d 729, 1962 R.I. LEXIS 8 (1962).

Evidence of Levy.

Under former statute no particular form or ceremony was required for a levy of execution, so where a sheriff advertised and sold under an execution it was conclusive evidence of the levy. Lynch v. Earle, 18 R.I. 531 , 28 A. 763, 1894 R.I. LEXIS 9 (1894).

Joint Tenants.

Where husband and wife held real property as joint tenants and execution was levied on such real estate because of judgment obtained against husband, and the husband died after such levy but before the property was sold, the surviving wife became the sole owner of the property by virtue of her survivorship. Knibb v. Security Ins. Co., 121 R.I. 406 , 399 A.2d 1214, 1979 R.I. LEXIS 1792 (1979).

Notice of Sale.

A notice of execution sale was not invalid merely because the plaintiff’s name was spelled “Bartlett” instead of “Bassett.” Horton v. Bassett, 16 R.I. 419 , 16 A. 715, 1889 R.I. LEXIS 7 (1889).

Sale under a defective advertisement was void and did not operate to render invalid a subsequent levy and sale. East Greenwich Inst. for Sav. v. Allen, 22 R.I. 337 , 47 A. 885, 1901 R.I. LEXIS 8 (1901).

Where statutory notice was not given, sale was void. Bowker v. Semple, 51 R.I. 142 , 152 A. 604, 1930 R.I. LEXIS 65 (1930).

— Evidence of Compliance.

If the officer’s return fails to show that advertisement of sale was given as prescribed by the statute compliance could not be shown by outside evidence. Wilcox v. Emerson, 10 R.I. 270 , 1872 R.I. LEXIS 19 (1872).

Oppressive Conditions.

An execution sale of land requiring cash on the spot will be set aside for oppression and inadequacy of price. Aldrich v. Wilcox, 10 R.I. 405 , 1873 R.I. LEXIS 7 (1873).

Portion of Property Sold.

The officer is to sell only so much of the estate as necessary to satisfy the execution. Aldrich v. Wilcox, 10 R.I. 405 , 1873 R.I. LEXIS 7 (1873).

Redemption.

Whatever claim respondents might have had to exercise the statutory right of redemption of property sold for taxes was gone in 1973 because of the 1964 sheriff’s deed. Green Acres Realty v. Rocchio, 115 R.I. 407 , 347 A.2d 407, 1975 R.I. LEXIS 1164 (1975).

Time Between Levy and Sale.

Where, after levy of execution, defendant petitioned for new trial, thus staying execution, it was not necessary, after dismissal of the petition for new trial, to wait another three months before holding the sale. Horton v. Bassett, 16 R.I. 419 , 16 A. 715, 1889 R.I. LEXIS 7 (1889).

In computing the three-month period between levy and sale both day of levy and day of sale should be excluded. Goldsworthy v. Coyle, 19 R.I. 323 , 33 A. 466, 1895 R.I. LEXIS 85 (1895).

Collateral References.

Adverse possession as to co-tenant by one claiming under or through judicial sale of the entire property for the debt of the other co-tenant. 27 A.L.R. 17; 32 A.L.R.2d 1214.

Adverse possession by purchaser at judicial sale of property held in trust. 2 A.L.R. 47; 49 A.L.R.2d 982.

Attack upon judgment by purchasers at judicial sale for purpose of preventing confirmation or being otherwise relieved from obligation assumed. 174 A.L.R. 538.

Cloud on title, invalid execution sale. 78 A.L.R. 106.

Color of title, effect of judicial sale to deprive of. 136 A.L.R. 1351.

Compliance with bid at judicial sale where title is doubtful. 57 A.L.R. 1470.

Conclusiveness on purchaser at judicial sale of provisions of order or decree of confirmation regarding terms and conditions. 95 A.L.R. 1492.

Contingent remainder as subject to sale. 60 A.L.R. 803.

Corporate property, right of officer or director of corporation to purchase in his own interest at judicial or other public sale. 76 A.L.R. 439.

Corporation acquiring title through judicial sale as liable for debts of predecessor. 15 A.L.R. 1139; 149 A.L.R. 803.

Creditors’ rights as affected by grant to one for life, and afterwards, either absolutely or contingently, to grantor’s heirs or next of kin. 16 A.L.R.2d 691.

Crops, judicial or execution sale of realty as affecting debtor’s share in crops grown by tenant or cropper. 13 A.L.R. 1425; 113 A.L.R. 1355.

Decedent’s estate, liability for debts of, of property which has passed by judicial sale out of hands of beneficiary of estate, in whose hands it was liable. 103 A.L.R. 1021.

Destruction of or damage to property after judicial or execution sale as affecting rights and liability of successful bidder. 17 A.L.R. 970; 25 A.L.R. 71.

Direct attack upon purchase by attorney of client’s property at or through execution or judicial sale. 20 A.L.R.2d 1280.

Ejectment, application of rule that plaintiff in, need not trace title back of common source, where title is claimed under judicial sale. 5 A.L.R.3d 375.

Execution sale, limiting judgment creditor to balance on judgment after crediting thereon fair market value of property purchased by him at. 144 A.L.R. 858.

Exemptions, confirmation of execution sale of land as adjudication that land was not exempt. 5 A.L.R. 390.

Fixtures, right of seller of, retaining title thereto or a lien thereon, as against purchaser of the realty at judicial sale. 13 A.L.R. 456; 73 A.L.R. 748; 88 A.L.R. 1318; 111 A.L.R. 362; 141 A.L.R. 1283.

Grounds other than defects as to title of land, resale or irregularity in sale, for relief of successful bidder from obligation to comply with bid. 63 A.L.R. 974.

Higher bid, effect of receipt of, before confirmation, upon the confirmation of judicial sale. 11 A.L.R. 399; 152 A.L.R. 530.

Injunction against waste to protect lien of purchaser at judicial sale. 103 A.L.R. 385.

Interest of spouse in estate by entireties as subject to satisfaction of his or her individual debt. 166 A.L.R. 969.

Inverse order of alienation, application to judicial sale. 131 A.L.R. 85.

Joint tenancy, rights and remedies of purchaser under execution in respect of estate in real property held in. 111 A.L.R. 171.

Lease, sale of, under execution as violation of covenant against assignment. 46 A.L.R. 850.

Marketability of title based on judicial sale. 57 A.L.R. 1456.

Mortgagee’s purchase of the mortgaged property at a judicial sale subject to the mortgage as affecting his right to personal judgment for the mortgage debt. 95 A.L.R. 96.

Mortgagor, purchaser at execution sale under judgment against, as entitled to attack voidable sale under power in mortgage. 143 A.L.R. 536.

Notice of claim adverse to title conveyed, original owner’s continued possession of land after judicial sale as. 105 A.L.R. 872.

Place of sale, validity of judicial or other public sale as affected by particular point in courthouse or other place identified by notice, or designated by statute, at which the sale was made or by indefiniteness of notice as regards that point. 120 A.L.R. 660.

Propriety of setting minimum or “upset price” for sale of property at judicial foreclosure. 4 A.L.R.5th 693.

Recitals in sheriff’s deed as prima facie evidence of giving of notice. 36 A.L.R. 998; 108 A.L.R. 667.

Reformation of contract, right to, of purchaser at judicial sale of interest of party to contract. 112 A.L.R. 915.

Retainer of indebtedness of heir, legatee, or distributee as against purchasers on execution. 1 A.L.R. 1035; 30 A.L.R. 775; 75 A.L.R. 878; 110 A.L.R. 1384; 164 A.L.R. 717.

Rights and remedies of purchaser at judicial or execution sale where sale is void or is set aside because proceedings are imperfect or irregular, or where description of property is defective. 142 A.L.R. 310.

Rights of parties under oral agreement to buy or bid in land for another at judicial sale. 27 A.L.R.2d 1285.

Seal, effect of omission of, from order of sale. 30 A.L.R. 735.

Solid mineral royalty as real or personal property for purposes of execution. 68 A.L.R.2d 728.

Steps to be taken by officer before resale upon default of purchaser at judicial or execution sale. 24 A.L.R. 1330.

Title of stranger to litigation who purchased at judicial sale before appeal or pending appeal without supersedeas as affected by reversal of decree directing sale. 155 A.L.R. 1252.

Use and occupation by judgment debtor or his successor in interest during period of redemption, right of purchaser at execution or judicial sale to value of. 153 A.L.R. 739.

Use and occupation, or rents and profits, liability for, of purchaser at execution or judicial sale who is required to restore property because of reversal or vacation of judgment or sale thereunder. 156 A.L.R. 905.

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

Violation of direction of decree or order as regards sale of land in parcels or in gross as affecting validity of sale and title of purchaser. 84 A.L.R. 324.

9-26-17. Adjournment of sale.

The officer may, for good cause, from time to time adjourn the sale of the real estate or of any interest therein levied on, giving one week’s notice thereof by publication in some public newspaper in the manner as provided in § 9-26-16 .

History of Section. C.P.A. 1905, § 636; G.L. 1909, ch. 304, § 13; G.L. 1923, ch. 355, §§ 13, 14; P.L. 1932, ch. 1905, § 1; P.L. 1933, ch. 2032, § 1; G.L. 1938, ch. 553, § 14; G.L. 1956, § 9-26-17 ; P.L. 1997, ch. 326, § 23.

NOTES TO DECISIONS

Cause for Adjournment.

Defects in advertisements furnished good cause for adjournment of sale. Reynolds v. Hoxsie, 6 R.I. 463 , 1860 R.I. LEXIS 16 (1860).

Common-Law Power.

Statute did not confer the power to adjourn a sale but only recognized this incidental power which the sheriff had at common law. Reynolds v. Hoxsie, 6 R.I. 463 , 1860 R.I. LEXIS 16 (1860); Aldrich v. Grimes, 14 R.I. 219 , 1883 R.I. LEXIS 41 (1883).

Sheriff had common-law power to adjourn sale for good cause other than those specifically stated in former statute. Aldrich v. Grimes, 14 R.I. 219 , 1883 R.I. LEXIS 41 (1883).

Notice.

Adjournment of execution sale for two days did not comply with statute allowing adjournment, as one week’s notice thereof is required. McCudden v. Wheeler & Wilson Mfg. Co., 23 R.I. 528 , 51 A. 48, 1902 R.I. LEXIS 138 (1902).

Adjournment of sale for one-half hour, though treated by sheriff as an adjournment and so designated in the deed, was not such an adjournment as required another advertisement. Boiani v. Wilson, 47 R.I. 317 , 132 A. 881, 1926 R.I. LEXIS 48 (1926).

9-26-18. Sale after return day of execution.

The sale shall be made under the execution levied thereon, although the return day thereof may have passed.

History of Section. C.P.A. 1905, § 638; G.L. 1909, ch. 304, § 15; G.L. 1923, ch. 355, § 15; G.L. 1938, ch. 553, § 15; G.L. 1956, § 9-26-18 .

Collateral References.

Return day of writ, judicial sale made after, under a levy made before return day. 2 A.L.R. 189.

9-26-19. Form of deed on execution sale.

  1. The following shall be substantially the form of the deed to be given whenever real estate is levied upon and sold as provided in this chapter:

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  2. And there shall be annexed to the deed, and forming a part thereof, a copy of the execution and the officer’s return thereon, duly certified by the officer.

TO ALL PEOPLE TO WHOM THESE PRESENTS SHALL COME. send Greeting: Whereas an execution against at the suit of was by me the said on the day of levied on (here describe the premises); and whereas on the day of all the estate, right, title, interest, and property of the said in the premises aforesaid, were by me, the said sold at public auction, for the satisfaction of the said execution, to , who was the highest bidder, for the sum of which the said hath since well and truly paid to me the said : NOW KNOW YE, that by force and virtue of the law in such case made and provided, I, the said in consideration of the sum of money paid unto me as aforesaid, do by these presents bargain, sell, assign, and set over unto the said heirs and assigns forever, all the estate, right, title, interest, property, freehold, and inheritance of the said of, in and to the said premises and appurtenances at the time of the levy thereon. TO HAVE AND TO HOLD the said premises and appurtenances to the said heirs and assigns forever. IN WITNESS, &C.

History of Section. C.P.A. 1905, § 639; G.L. 1909, ch. 304, § 16; G.L. 1923, ch. 355, § 16; G.L. 1938, ch. 553, § 16; G.L. 1956, § 9-26-19 .

NOTES TO DECISIONS

Previous Attachments.

The sheriff’s deed passes only the interest that the debtor had at the time of attachment and is subject to previous attachments. De Wolf v. Murphy, 11 R.I. 630 , 1877 R.I. LEXIS 65 (1877).

Return of Execution.

No return of execution under the former law was necessary to vest the title in the purchaser. Foster v. Berry, 14 R.I. 601 , 1884 R.I. LEXIS 68 (1884).

9-26-20. Time of attachment shown in deed.

Whenever attachment shall have been made by original writ or writ of mesne process, the officer shall insert the time thereof and vary his or her deed accordingly.

History of Section. C.P.A. 1905, § 640; G.L. 1909, ch. 304, § 17; G.L. 1923, ch. 355, § 17; G.L. 1938, ch. 553, § 17; G.L. 1956, § 9-26-20 .

9-26-21. Copies of execution records as evidence.

A certified copy of the record of execution and return shall be admissible as evidence of the contents of the execution and return; and in the event of the destruction, loss, or obliteration of the return, amendments thereof may be allowed to be made upon a copy of the record certified by the city clerk, town clerk, or recorder of deeds, as the case may be, of the city or town wherein the deed, execution, or return shall have been recorded, with the same effect as if the amendment had been made on the original return.

History of Section. C.P.A. 1905, § 641; G.L. 1909, ch. 304, § 18; G.L. 1923, ch. 355, § 18; G.L. 1938, ch. 553, § 18; G.L. 1956, § 9-26-21 .

9-26-22. Levy on attached stock.

Whenever execution shall issue against a defendant whose stock or shares in any banking association or any body corporate established within this state shall have been attached, the officer charged therewith shall serve a copy of the execution, if a bank, upon the cashier; if an insurance company, upon the president or secretary; if any other corporate body within this state, upon the treasurer or person executing the duties of treasurer; and if any foreign corporation, upon the clerk or agent or its attorney authorized to accept service of process in its behalf in this state; which shall be deemed a good and sufficient levy of the execution upon the stock or shares of the defendant in the company, provided the levying officer complies with the requirements of § 6A-8-317 [repealed].

History of Section. C.P.A. 1905, § 642; G.L. 1909, ch. 304, § 19; G.L. 1923, ch. 355, § 19; G.L. 1938, ch. 553, § 19; G.L. 1956, § 9-26-22 ; P.L. 1960, ch. 147, § 3.

Compiler’s Notes.

The reference to § 6A-8-317 is now § 6A-8-112 .

NOTES TO DECISIONS

Equitable Rights.

Equitable rights in stock obtained by an assignment not recorded on the corporate books are not subject to attachment and execution sale, and the purchaser at an execution sale cannot require the corporation to transfer the stock to his name on its books. Lippitt v. American Wood Paper Co., 15 R.I. 141 , 23 A. 111, 1885 R.I. LEXIS 65 (1885).

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 attachment or execution. 122 A.L.R. 338.

9-26-23. Sale and transfer of stock.

The stock or shares, or so much thereof as shall be necessary, shall be advertised and sold in the same manner as other personal property levied on by execution, and a deed or deeds thereof given by the officer shall vest in the purchaser all the right, title, and interest of the defendant in the shares so sold, and shall be recorded by the recording officer of the company, subject to the provisions of § 6A-8-317.

History of Section. C.P.A. 1905, § 643; G.L. 1909, ch. 304, § 20; G.L. 1923, ch. 355, § 20; G.L. 1938, ch. 553, § 20; G.L. 1956, § 9-26-23 ; P.L. 1960, ch. 147, § 3.

NOTES TO DECISIONS

Corporate Books.

It is not necessary for stock which has been sold on execution to be transferred on the corporation books in order for the purchaser to have perfect title. Lippitt v. American Wood Paper Co., 14 R.I. 301 , 1883 R.I. LEXIS 67 (1883).

9-26-24. Levy on corporate stock not previously attached.

The stock or shares of any person whatsoever in any banking association or in any incorporated company within this state, or in any foreign corporation having an attorney in this state appointed by law upon whom service of process against it can be made according to the provisions of chapter 5 of this title, shall be liable to be levied on by execution duly obtained, like other personal property; and the execution being directed to the proper officer according to law, he or she may levy the stock and shares, in the manner set forth in §§ 9-26-22 and 9-26-23 , upon any stock or shares of the defendant to be found within his or her precinct, and shall proceed to advertise and sell and give deeds thereof in the manner therein prescribed subject to the requirements of § 6A-8-317 [repealed].

History of Section. C.P.A. 1905, § 644; G.L. 1909, ch. 304, § 21; G.L. 1923, ch. 355, § 21; G.L. 1938, ch. 553, § 21; G.L. 1956, § 9-26-24 ; P.L. 1960, ch. 147, § 3.

Compiler’s Notes.

The reference to § 6A-8-317 is now § 6A-8-112 .

Cross References.

Levy on corporate stock, § 6A-8-112 .

NOTES TO DECISIONS

Levy Against Record Owner.

Corporate stock which has been transferred in fraud of creditors but still remains in the name of the debtor on the corporate books is liable to attachment and sale as the property of the debtor. Beckwith v. Burrough, 14 R.I. 366 , 1884 R.I. LEXIS 17 (1884).

9-26-25. Execution against corporations — Action against officers and stockholders.

Whenever final judgment for any sum shall be rendered by any court against any banking association or any incorporated company, execution on the judgment shall be issued against the goods, chattels, and real estate of the corporation; and whenever any execution shall be, by the officer charged with the service thereof, returned that he or she cannot find sufficient property of the corporation whereon to levy the execution, the party in whose favor the judgment shall have been rendered may bring a civil action in the court in which the judgment was rendered against the president and directors, trustees, managers, or other like officers of the corporation, if any such there are, and, if none, then against so many of the stockholders or members thereof as he or she may think fit.

History of Section. C.P.A. 1905, § 645; G.L. 1909, ch. 304, § 22; G.L. 1923, ch. 355, § 22; G.L. 1938, ch. 553, § 22; G.L. 1956, § 9-26-25 ; P.L. 1965, ch. 55, § 45.

Collateral References.

Receiver’s appointment for corporation as affecting enforcement of execution lien. 8 A.L.R. 459.

9-26-26. Execution against corporation officers and stockholders.

On the hearing of the action authorized by § 9-26-25 , unless the president and directors, trustees, managers, or other like officers, stockholders, or members shall make it appear that they had not, at the time of the service of process upon them, within their possession and control, sufficient property of the corporation to satisfy the judgment or any part thereof, the court shall issue execution against the president, directors, trustees, managers, or other like officers, stockholders, or members, for the amount of the judgment, with interest and costs, as for their own private debt; but if it shall appear that the officers, stockholders, or members had property to satisfy part of the judgment only, then an execution shall issue for that amount only and costs.

History of Section. C.P.A. 1905, § 646; G.L. 1909, ch. 304, § 23; G.L. 1923, ch. 355, § 23; G.L. 1938, ch. 553, § 23; G.L. 1956, § 9-26-26 ; P.L. 1965, ch. 55, § 45.

9-26-27. Interest on execution.

Every deputy sheriff, town sergeant, and constable charged with the service of any execution for any debt or damages shall levy, collect, receive, and pay over interest on the debt or damages, from the date entered on the margin, up to the time of its discharge by him or her.

History of Section. C.P.A. 1905, § 649; G.L. 1909, ch. 304, § 26; G.L. 1923, ch. 355, § 26; G.L. 1938, ch. 553, § 24; G.L. 1956, § 9-26-27 ; P.L. 2012, ch. 324, § 19.

9-26-28. Execution against a deputy sheriff.

Whenever judgment shall be rendered against any person holding the office of deputy sheriff, the execution issued thereon, directed in the ordinary form, may be delivered to the division of sheriffs who, may levy on the property, subject to levy on execution, of the defendant, and proceed and sell the property according to law.

History of Section. C.P.A. 1905, § 650; G.L. 1909, ch. 304, § 27; G.L. 1923, ch. 355, § 27; G.L. 1938, ch. 553, § 25; G.L. 1956, § 9-26-28 ; P.L. 2012, ch. 324, § 19.

9-26-29. Execution against body of a deputy sheriff for want of property.

For want of goods and chattels and real estate or other property, subject to levy on execution, the director of public safety may designate a deputy sheriff to take the body of the defendant and commit him or her to the adult correctional institutions, whenever the writ of execution shall command him or her so to do.

History of Section. C.P.A. 1905, § 651; G.L. 1909, ch. 304, § 28; G.L. 1923, ch. 355, § 28; G.L. 1938, ch. 553, § 26; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 9-26-29 ; P.L. 1997, ch. 326, § 76; P.L. 2012, ch. 324, § 19.

9-26-30. Priority of attachments.

In all attachments of real estate, or of goods and chattels, or of personal estate in the hands of a trustee, or of stock or shares in any banking association or other incorporated company, he or she who shall first procure any attachment to be made for any just debt or damages shall be entitled to have his or her debt or damages satisfied before any other demand for which the property shall be attached or taken by execution at the suit of any other person, and all others in order of attachment.

History of Section. C.P.A. 1905, § 567; G.L. 1909, ch. 301, § 1; G.L. 1923, ch. 351, § 1; G.L. 1938, ch. 558, § 1; G.L. 1956, § 9-26-30 .

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).

Order of Sale.

First attachment took priority, even though sale was first made on a subsequent attachment. De Wolf v. Murphy, 11 R.I. 630 , 1877 R.I. LEXIS 65 (1877).

Collateral References.

Check or draft holder’s right to priority as against attachment as affected by Negotiable Instruments Law. 50 A.L.R. 403; 84 A.L.R. 412.

Partnership, relative rank of attachment or execution based on partnership liability and attachment or execution based on liability of individual partner. 75 A.L.R. 997.

Purchaser, attachment creditor as, within rule that first of two purchasers to obtain possession will prevail. 21 A.L.R. 1031.

Release or modification of lien to which property was subject when attachment was levied, effect of. 128 A.L.R. 1392.

Retaining indebtedness of heir, legatee or distributee as against attaching creditors. 1 A.L.R. 1034; 30 A.L.R. 775; 75 A.L.R. 878; 110 A.L.R. 1384; 164 A.L.R. 717.

Right of mortgagee and/or lienor to compensation when property subject to mortgage and/or lien is taken by federal government forfeiture based on criminal acts of owner. 136 A.L.R. Fed. 593.

Statutory provisions respecting registration of conditional sales contracts in case of residents of other states as affecting priority of lien of conditional vendor over lien of attaching creditor of conditional vendee. 10 A.L.R.2d 764.

Surety of building contractor completing contract as entitled to moneys earned by contractor but unpaid before default, as against attaching creditors of contractor. 45 A.L.R. 388; 134 A.L.R. 738; 164 A.L.R. 613.

9-26-31. Priority of levies.

In all levies on execution upon real estate, goods and chattels, stocks or shares, or other subject of levy on execution whatsoever, he or she who shall first procure the attachment, if any, or, if there is no attachment, he or she who shall first procure levy to be made, shall be entitled to have his or her debt or damages satisfied before any other demand for which the property may be subsequently attached, or levied on by execution, at the suit of any other person; and all others in order of their attachments or levies.

History of Section. C.P.A. 1905, § 647; G.L. 1909, ch. 304, § 24; G.L. 1923, ch. 355, § 24; G.L. 1938, ch. 558, § 2; G.L. 1956, § 9-26-31 .

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).

Date of Judgment.

Rhode Island statutory law indicates that the date of judgment is irrelevant in determining priority among lienholders. In re Armstrong, 49 B.R. 44, 1985 Bankr. LEXIS 6267 (Bankr. D.R.I. 1985).

Collateral References.

Partnership, relative rank of attachment or execution based on partnership liability and attachment or execution based on liability of individual partner. 75 A.L.R. 997.

Right of mortgagee and/or lienor to compensation when property subject to mortgage and/or lien is taken by federal government forfeiture based on criminal acts of owner. 136 A.L.R. Fed. 593.

9-26-32. Time of day of levy to be noted.

As diverse levies of the same real or personal estate may happen to be made on the same day, the officer who shall make any such levy, whether of real or personal estate, shall in his or her return set forth the time of the day when the levy was made, to the end that the priority of the attaching and levying creditors may be known.

History of Section. C.P.A. 1905, § 648; G.L. 1909, ch. 304, § 25; G.L. 1923, ch. 355, § 25; G.L. 1938, ch. 558, § 3; G.L. 1956, § 9-26-32 .

9-26-33. Discharge after twenty years of levy against real estate.

On and after July 1, 1980, any executions levied against real estate, heretofore or thereafter of record, unless the levy is against only one spouse in real estate held as tenants by the entirety, shall be deemed discharged of record and no longer a lien upon the real estate therein described or referred to after the expiration of a period of twenty (20) years from the date of judgment in the case in which the execution was issued.

History of Section. P.L. 1980, ch. 280, § 1; P.L. 1990, ch. 8, § 1.

9-26-34. Attachment of state and municipal employees’ wages.

The wages or salaries of any employee of the state or of any city, town, or other municipal or quasi-governmental corporation may be levied on by attachment of any warrant of distress or any other writ or execution, original, mesne, or judicial.

History of Section. P.L. 1981, ch. 376, § 2.

Chapter 27 Chancerization [Repealed.]

9-27-1 — 9-27-5. Repealed.

History of Section. C.P.A. 1905, §§ 429-433; G.L. 1909, ch. 294, §§ 3-7; G.L. 1923, ch. 344, §§ 3-7; G.L. 1938, ch. 554, §§ 1-5; G.L. 1956, §§ 9-27-1 — 9-27-5; P.L. 1965, ch. 55, § 46; Repealed by P.L. 1981, ch. 331, § 1.

Compiler’s Notes.

Former §§ 9-27-1 — 9-27-5 concerned chancerization.

Chapter 28 Proceedings in Aid of Execution

9-28-1. Creditor’s equitable action.

Any judgment creditor, after his or her execution has been returned wholly or in part unsatisfied, may, by a civil action in the nature of a creditor’s bill, reach and apply and subject to the payment and satisfaction of his or her judgment any equitable estate, any equitable assets, or any choses in action of the judgment debtor, except such as shall be exempt from attachment by virtue of statutory provision. The remedy provided by this section shall be cumulative and shall not supersede any existing remedy.

History of Section. G.L. 1923, ch. 354, § 4; P.L. 1927, ch. 973, § 1; G.L. 1938, ch. 556, § 1; G.L. 1956, § 9-28-1 ; P.L. 1965, ch. 55, § 47.

Rules of Court.

Proceedings in aid of execution in district court in accordance with statute, see Dist. Ct. Civil Rule 69.

Proceedings in aid of execution in superior court in accordance with statute, see Super. Ct. R. Civ. P. Rule 69.

NOTES TO DECISIONS

Constitutionality.

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).

This provision, when used as 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).

Choses in Action.

The creditor’s equitable action statute specifically allows a creditor to reach and apply choses in action which are not otherwise statutorily exempt. Howe v. Richardson (In re Howe), 232 B.R. 534, 1999 Bankr. LEXIS 266 (B.A.P. 1st Cir.), aff'd, 193 F.3d 60, 1999 U.S. App. LEXIS 25212 (1st Cir. 1999).

Creditor of Decedent’s Beneficiary.

A judgment creditor of the estate of decedent’s beneficiary has the identical interest in decedent’s estate as the interest asserted by a judgment creditor who commences an action to reach and apply his judgment debtor’s interest in a decedent’s estate. Lind v. McSoley, 419 A.2d 247, 1980 R.I. LEXIS 1724 (1980).

A trial judge erred when he ruled that the superior court lacked subject matter jurisdiction over the plaintiff’s civil action in the nature of a creditor’s bill seeking to reach and apply the equity of the deceased in property, which action was brought in order to satisfy a judgment awarded her upon which an execution had been returned wholly unsatisfied. Desper v. Talbot, 727 A.2d 1233, 1999 R.I. LEXIS 80 (1999).

Cumulative Remedy.

The remedy provided to judgment creditors under this provision is cumulative to any other remedy, but does not supersede any existing remedy. Desper v. Talbot, 727 A.2d 1233, 1999 R.I. LEXIS 80 (1999).

Mandamus.

The trial court erred in denying a motion for issuance of a writ of mandamus against a public housing authority, where the defendant was otherwise left with no means of collecting her damage award from a valid judgment, given that the supplemental remedy of this section is not applicable to public housing authorities according to the judicial process afforded them under § 45-27-14 . Adler v. Lincoln Hous. Auth., 623 A.2d 20, 1993 R.I. LEXIS 101 (1993).

Promissory Note.

This section does not give a judgment creditor the right to reach a chose in action secured by a promissory note, since such choses are exempt under § 9-26-4 . Berard v. Blais, 56 R.I. 431 , 186 A. 475, 1936 R.I. LEXIS 117 (1936).

Collateral References.

County, creditors’ bill against, to reach money due from it to third person. 60 A.L.R. 826.

Nonresidence or absence of debtor as obviating necessity of procuring judgment as condition of creditors’ bill. 38 A.L.R. 269.

9-28-2. Transmission of superior court papers to district court to which writ returnable.

Upon ex parte motion of any party for whom judgment is rendered in the superior court in a case in which the writ was returnable to a district court and whose execution has been returned either wholly or in part unpaid and unsatisfied, the superior court in its discretion may transmit to the district court to which the writ in the case was made returnable all the papers in the case for hearing under the provisions of §§ 9-28-3 9-28-7 , there to be kept until their return shall be ordered by the superior court.

History of Section. P.L. 1915, ch. 1228, § 1; P.L. 1916, ch. 1368, § 1; P.L. 1921, ch. 2014, § 1; G.L. 1923, ch. 354, § 1; G.L. 1938, ch. 555, § 1; G.L. 1956, § 9-28-2 .

NOTES TO DECISIONS

Execution on One of Joint Debtors.

Where a joint execution was returned after service on only one of the debtors, the court had no jurisdiction to grant supplementary relief. Morris Plan Co. v. Katz, 57 R.I. 495 , 190 A. 455, 1937 R.I. LEXIS 115 (1937).

Execution Returned Nulla Bona.

Judgment creditor was not precluded from supplemental relief even though execution returnable six months from date of issue was returned nulla bona two days after date. Curtis v. Morton, 39 R.I. 331 , 97 A. 803, 1916 R.I. LEXIS 34 (1916).

9-28-3. Citation to show cause why instalment payments should not be decreed.

On the filing of an application by a judgment creditor, execution on whose judgment has been returned either wholly or in part unsatisfied and unpaid, the clerk or a justice of the court rendering the judgment, or if the judgment is rendered in the superior court in a case in which the writ was returnable to a district court, then and in such case the clerk or justice of the district court to which the writ was returnable, if the papers in the case shall have been transmitted to the district court as hereinafter provided, shall issue a citation to the judgment debtor to appear at a time and place named therein to show cause why an examination into his or her circumstances should not be made and a decree be entered ordering him or her to pay the judgment in full or by instalment, weekly, monthly, or otherwise. The citation shall be made returnable to the court by which it was issued and shall be served by delivering a copy to the debtor or by leaving a copy at the last and usual place of abode of the debtor with some person living there at least six (6) days before the return day named therein.

History of Section. P.L. 1915, ch. 1228, § 1; P.L. 1916, ch. 1368, § 1; P.L. 1921, ch. 2014, § 1; G.L. 1923, ch. 354, § 1; G.L. 1938, ch. 555, § 1; G.L. 1956, § 9-28-3 .

Cross References.

Fees in district court, § 9-29-1 .

NOTES TO DECISIONS

Clerk’s Discretion.

A court clerk, before he issues a citation which would order a judgment debtor to appear before the court to show cause, can examine the execution to see if it has been served in accordance with the legislative (§§ 9-25-7 and 9-25-8 ) and judicial mandates relating to the service of process. Plantations Indus. Supply v. O'Brien, 119 R.I. 426 , 379 A.2d 365, 1977 R.I. LEXIS 1921 (1977); Plantations Legal Defense Servs. v. O'Brien, 122 R.I. 856 , 413 A.2d 486, 1980 R.I. LEXIS 1506 (1980).

The issuance of a citation for supplementary proceedings involves the use of the clerk’s discretion and is immune from review by way of mandamus. Plantations Indus. Supply v. O'Brien, 119 R.I. 426 , 379 A.2d 365, 1977 R.I. LEXIS 1921 (1977); Plantations Legal Defense Servs. v. O'Brien, 122 R.I. 856 , 413 A.2d 486, 1980 R.I. LEXIS 1506 (1980).

Limitation of Court’s Authority.

Where it was shown that a judgment debtor’s reasonable expenses for the support of himself and his family equalled or exceeded his take home pay the trial court exceeded its authority in ordering him to secure another job and thus obtain additional income from which to make weekly payments to the creditor. Barber v. Jemery, 109 R.I. 556 , 288 A.2d 497, 1972 R.I. LEXIS 1218 (1972).

In a proceeding under this section the trial justice exceeded his jurisdiction by ordering debtor to endorse a stock certificate over to creditor’s attorney. Rhode Island Hosp. v. Collins, 117 R.I. 535 , 368 A.2d 1225, 1977 R.I. LEXIS 1722 (1977).

When an appellate court reversed a trial court’s denial of judgment debtors’ motion to vacate a default judgment against the debtors and the judgment creditors moved the trial court to enforce the judgment, a trial court had authority to grant the creditors’ motion because R.I. Gen. Laws § 9-28-3 , governing enforcement of the judgment, pursuant to Fed. R. Civ. P. 69, did not require the debtors’ physical presence in Rhode Island, since the court had personal jurisdiction over the debtors, or limit enforcement of the judgment to assets of the debtors located in Rhode Island. Estates of Ungar v. Palestinian Auth., 715 F. Supp. 2d 253, 2010 U.S. Dist. LEXIS 58735 (D.R.I. 2010).

Particular Cases.

Trial court properly entered a judgment in a judgment creditor’s favor because the judgment debtor’s claim was barred by the doctrine of collateral estoppel where both parties were also the parties to a previous proceeding that resulted in a final judgment on the merits in the creditor’s favor, and the precise argument that the judgment debtor made in the instant appeal—challenging the trial court’s jurisdiction regarding the lack of a return of an execution—had already been addressed and decided. Trainor v. Grieder, 91 A.3d 360, 2014 R.I. LEXIS 63 (2014).

Return of Execution on Judgment.

Trial court properly considered a judgment creditor’s application for supplementary proceedings in aid of execution, despite the fact that there was no return of the execution on the judgment as required by R.I. Gen. Laws § 9-28-3 , because the judgment debtor waived this requirement by repeatedly responding to citations issued in supplementary proceedings after the original writ of execution on the judgment was issued. Trainor v. Grieder, 23 A.3d 1171, 2011 R.I. LEXIS 104 (2011).

Service of Process.

Legislative enactments relating to the service of process are to be followed and construed strictly. Plantations Legal Defense Servs. v. O'Brien, 122 R.I. 856 , 413 A.2d 486, 1980 R.I. LEXIS 1506 (1980).

9-28-4. Appearance of judgment debtor — Hearing on citation.

A judgment debtor upon whom the citation shall be served as provided in § 9-28-3 shall be obliged to appear in court in person in response to the citation as therein commanded, and for failure to so appear, may be proceeded against as provided by chapter 17 of this title in the case of a witness duly summoned who fails to appear as commanded. At the hearing on the citation, the court shall make inquiry by examination of the judgment debtor, or otherwise, as to his or her circumstances, his or her income from any source, and his or her ability to pay the judgment; and if the debtor fails to appear at the time and place fixed the inquiry may proceed in his or her absence.

History of Section. P.L. 1915, ch. 1228, § 1; P.L. 1916, ch. 1368, § 1; P.L. 1921, ch. 2014, § 1; G.L. 1923, ch. 354, § 1; G.L. 1938, ch. 555, § 1; G.L. 1956, § 9-28-4 ; P.L. 1997, ch. 326, § 84.

NOTES TO DECISIONS

Ability to Pay.

It is proper for a trial justice to ask the judgment debtor how much he is able to pay on the judgment as the justice is not bound by the debtor’s answer but is free to determine from any other evidence before him what the debtor can reasonably pay. Ciccone v. Ciccone, 98 R.I. 480 , 204 A.2d 819, 1964 R.I. LEXIS 200 (1964).

When judgment creditors moved a trial court to enforce a judgment obtained against the Palestinian Authority (PA), the judgment creditors met any burden to show that the PA had the ability to pay the judgment because (1) the judgment creditors submitted evidence of the amount of tax revenue collected by Israel on behalf of the PA, and (2) this revenue was cognizable income for purposes of R.I. Gen. Laws § 9-28-4 . Estates of Ungar v. Palestinian Auth., 715 F. Supp. 2d 253, 2010 U.S. Dist. LEXIS 58735 (D.R.I. 2010).

Debtor’s Financial Needs.

In a hearing under this section the judgment debtor is not obliged to offer affirmative evidence as to what his financial needs for support of himself and his family require, but if the creditor is not satisfied with the evidence on this point he is free to press his inquiry further as to the debtor’s reasonable financial needs for such support. Ciccone v. Ciccone, 98 R.I. 480 , 204 A.2d 819, 1964 R.I. LEXIS 200 (1964).

9-28-5. Decree for installment payments on judgment — Finding of inability to pay.

If the court finds that the debtor is able to pay the judgment in full or by partial payments, from time to time, it shall, after first allowing the debtor out of his or her income a reasonable sum for the support of himself or herself or the support of himself or herself and family, if he or she has a family, enter a decree fixing the time, place, and amount of payments to be made by the debtor on the judgment out of his or her income in excess of the allowance. If the court entering the decree finds that the debtor is not able at the time to pay the judgment in full or by partial payments, from time to time, it shall enter a finding to that effect which shall be subject to revision on like notice and inquiry and on proof of changed circumstances of the debtor; but no subsequent citation to the debtor shall issue until the creditor or some one in his or her behalf has filed in court an affidavit setting forth evidence of such a change in the circumstances of the debtor as shall satisfy the court that a new inquiry as to the debtor’s ability to pay the judgment shall be made.

History of Section. P.L. 1915, ch. 1228, § 1; P.L. 1916, ch. 1368, § 1; P.L. 1921, ch. 2014, § 1; G.L. 1923, ch. 354, § 1; G.L. 1938, ch. 555, § 1; G.L. 1956, § 9-28-5 .

NOTES TO DECISIONS

Limitation of Court’s Authority.

Exception was sustained to order for weekly payments where there was not sufficient evidence that debtor would be left a reasonable sum for his own support. Hillside Metal Prods. v. Rowland, 79 R.I. 112 , 84 A.2d 534, 1951 R.I. LEXIS 14 (1951).

Where it was shown that a judgment debtor’s reasonable expenses for the support of himself and his family equalled or exceeded his take home pay the trial court exceeded its authority in ordering him to secure another job and thus obtain additional income from which to make weekly payments to the creditor. Barber v. Jemery, 109 R.I. 556 , 288 A.2d 497, 1972 R.I. LEXIS 1218 (1972).

Supplementary Proceedings.

Supplementary proceedings required the court to fix what the debtor was able to pay from his income to satisfy an outstanding judgment based upon his income after deductions of a reasonable amount for the support of the debtor and his family had been made. Wood v. Paolino, 116 R.I. 106 , 352 A.2d 397, 1976 R.I. LEXIS 1249 (1976).

9-28-6. Enforcement of decree.

If the debtor at any time fails to comply with the decree, the court entering the decree may cause him or her to be cited to show cause for the noncompliance; and unless the debtor shows good cause therefor, the court may order that unless he or she complies with the decree, or with such modification thereof as the court may then make, within the time stated in the order, the failure shall be a contempt of court; and if at the expiration of the time fixed by the court for compliance with the new decree the debtor still fails or refuses to comply therewith, the court may enforce its decree by proceedings for contempt. And if a defendant is in the custody of or committed to jail by a member of the division of sheriffs, or imprisoned, either upon execution or by order of the court in contempt proceedings, it shall not operate in any degree as a payment or satisfaction of the judgment upon which the execution is issued, or concerning which the order is entered, nor shall the custody, commitment to jail, or imprisonment be or constitute any bar, delay, or hindrance to any legal or equitable proceedings to discover or reach any assets, legal or equitable, of the defendant.

History of Section. P.L. 1915, ch. 1228, § 2; P.L. 1916, ch. 1368, § 2; G.L. 1923, ch. 354, § 2; G.L. 1938, ch. 555, § 2; G.L. 1956, § 9-28-6 ; P.L. 2012, ch. 324, § 20.

9-28-7. Revision or suspension of decree.

The court may, at any time on written notice to the adverse party or his or her attorney of record, for cause shown, revise, modify, or suspend a decree made in any proceedings under this chapter.

History of Section. P.L. 1915, ch. 1228, § 3; G.L. 1923, ch. 354, § 3; G.L. 1938, ch. 555, § 3; G.L. 1956, § 9-28-7 ; P.L. 1997, ch. 326, § 24.

NOTES TO DECISIONS

Appeal.

The mere fact that a district court order in supplementary proceedings is modifiable under this section does not deprive it of the finality necessary to make appeal the proper remedy. Murphy v. Charlie's Home Improvement Co., 117 R.I. 324 , 366 A.2d 809, 1976 R.I. LEXIS 1633 (1976).

Notice.

Because it had been initially determined in supplementary proceedings that a judgment debtor had the ability to pay $400 per month toward a judgment in a civil action for assault, a reexamination of that determination was governed by R.I. Gen. Laws § 9-28-7 ; the debtor was prejudiced by a lack of notice prior to a new hearing on his ability to pay, after which his payments were increased to $800 per month. Trainor v. Grieder, 925 A.2d 243, 2007 R.I. LEXIS 65 (2007).

Chapter 29 Fees

9-29-1. District court fees.

  1. Every district court shall be allowed the following fees, in full, to be taxed in the bill of costs in every civil action:
    1. For the entry of every small claim $55.00. (2) For the entry of every other action $80.00. (3) For every writ of execution $20.00.

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  2. In addition to the fees set forth herein, the district court shall apply a technology surcharge assessed in accordance with § 8-15-11 .
  3. Provided, that five dollars ($5.00) of the fee for the entry of every action in subdivision (a)(1) or (a)(2) or writ in subdivision (a)(3) shall be forwarded to Rhode Island Legal Services.

History of Section. G.L. 1896, ch. 295, § 1; G.L. 1909, ch. 364, § 1; G.L. 1923, ch. 417, § 1; P.L. 1930, ch. 1517, § 1; G.L. 1938, ch. 633, § 1; G.L. 1956, § 9-29-1 ; P.L. 1960, ch. 72, § 1; P.L. 1961, ch. 89, § 1; P.L. 1971, ch. 147, § 1; P.L. 1978, ch. 304, § 1; P.L. 1979, ch. 304, § 1; P.L. 1982, ch. 118, § 1; P.L. 1988, ch. 129, art. 24, § 1; P.L. 1989, ch. 274, § 2; P.L. 1992, ch. 133, art. 6, § 2; P.L. 1994, ch. 70, art. 35, § 3; P.L. 1996, ch. 100, art. 43, § 1; P.L. 2004, ch. 212, § 2; P.L. 2004, ch. 300, § 3; P.L. 2009, ch. 5, art. 9, § 14; P.L. 2009, ch. 372, § 1; P.L. 2009, ch. 381, § 1; P.L. 2014, ch. 34, § 5; P.L. 2014, ch. 42, § 5.

Compiler’s Notes.

P.L. 2014, ch. 34, § 5, and P.L. 2014, ch. 42, § 5 enacted identical amendments to this section.

Comparative Legislation.

Fees:

Mass. Ann. Laws ch. 262, § 1 et seq.

9-29-2. Repealed.

History of Section. G.L. 1896, ch. 295, § 3; G.L. 1909, ch. 364, § 3; G.L. 1923, ch. 417, § 3; G.L. 1938, ch. 633, § 3; G.L. 1956, § 9-29-2 ; Repealed by P.L. 1982, ch. 260, § 1.

Compiler’s Notes.

Former § 9-29-2 concerned fees for justices of the peace.

9-29-3. Deposition fees.

To all officers empowered to take depositions, there shall be allowed:

  1. For every hour necessarily employed  . . . . .   $.40
  2. For every page of 200 words  . . . . .    .30
  3. For every mile’s travel to the place of caption  . . . . .    .10

History of Section. G.L. 1896, ch. 295, § 4; G.L. 1909, ch. 364, § 4; G.L. 1923, ch. 417, § 4; G.L. 1938, ch. 633, § 4; G.L. 1956, § 9-29-3 .

9-29-4. Costs allowed parties and attorneys in superior court.

The following fees shall be taxed and allowed in bills of costs to attorneys and parties in the superior court in civil cases:

  1. To the attorney of the party obtaining judgment $5.00 (2) To plaintiff’s solicitor for every complaint, original and supplemental 5.00 (3) To defendant’s solicitor for every answer, original or supplemental, one only to be taxed, though several filed, if defense be joint 5.00

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History of Section. G.L. 1896, ch. 295, § 7; C.P.A. 1905, § 1198; G.L. 1909, ch. 364, § 7; G.L. 1923, ch. 417, § 7; G.L. 1938, ch. 633, § 7; G.L. 1956, § 9-29-4 .

9-29-5. Jurors’ fees.

  1. All grand and petit jurors shall be paid for each day’s attendance on the superior court twenty-five dollars ($25.00) per day commencing July 1, 2022, and thereafter. The general assembly shall annually appropriate such sum as it may deem necessary to carry out the purposes of this section.
  2. Any grand or petit juror may, upon signing a form approved by the presiding justice of the superior court, donate their jury fee to the state. Any such donation shall be deposited into the general fund and shall be allocated to the Rhode Island Veterans Home Community Living Center.

History of Section. G.L. 1896, ch. 295, § 8; P.L. 1902, ch. 981, § 1; C.P.A. 1905, § 1216; P.L. 1907, ch. 1459, § 3; G.L. 1909, ch. 364, § 8; P.L. 1917, ch. 1482, § 1; G.L. 1923, ch. 417, § 8; P.L. 1930, ch. 1535, § 1; G.L. 1938, ch. 633, § 8; P.L. 1951, ch. 2707, § 1; G.L. 1956, § 9-29-5 ; P.L. 1959, ch. 61, § 1; P.L. 1967, ch. 150, § 1; P.L. 1978, ch. 260, § 1; P.L. 1983, ch. 3, art. I, § 1; P.L. 2021, ch. 158, § 1, effective July 1, 2021; P.L. 2021, ch. 159, § 1, effective July 1, 2021; P.L. 2021, ch. 174, § 1, effective July 2, 2021; P.L. 2021, ch. 175, § 1, effective July 6, 2021.

Compiler's Notes.

P.L. 2021, ch. 158, § 1 and P.L. 2021, ch. 159, § 1 enacted identical amendments to this section.

P.L. 2021, ch. 174, § 1 and P.L. 2021, ch. 175, § 1 enacted identical amendments to this section.

This section was amended by four acts ( P.L. 2021, ch. 158, § 1; P.L. 2021, ch. 159, § 1; P.L. 2021, ch. 174, § 1; P.L. 2021, ch. 175, § 1 ) as passed by the 2021 General Assembly. Since the acts are not in conflict with each other, the section is set out as amended by all four acts.

9-29-6. Repealed.

History of Section. P.L. 1926, ch. 802, § 1; G.L. 1938, ch. 633, § 9; G.L. 1956, § 9-29-6 ; P.L. 1967, ch. 150, § 1; Repealed by P.L. 1983, ch. 3, art. I, § 2.

Compiler’s Notes.

Former § 9-29-6 concerned subsistence allowances to jurors.

9-29-7. Witness fees.

  1. The fees of witnesses shall be:
    1. For every day’s attendance before the supreme or superior court, or before any other tribunal or magistrate, including attendance in giving depositions $10.00 (2) For every mile’s travel 10.00 (3) For every day’s commitment in jail upon default to enter into recognizance with surety 2.00

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  2. In addition to the fees above provided, witnesses summoned and testifying as experts in behalf of the state, or any person acting as an interpreter, before the supreme, superior, or district court, may be allowed and paid such sum as such court may deem just and reasonable.

History of Section. G.L. 1896, ch. 295, § 10; C.P.A. 1905, § 1199; G.L. 1909, ch. 364, § 9; G.L. 1923, ch. 417, § 9; G.L. 1938, ch. 633, § 10; P.L. 1939, ch. 715, § 7; P.L. 1956, ch. 3624, § 1; G.L. 1956, § 9-29-7 ; P.L. 1974, ch. 153, § 1; P.L. 1977, ch. 56, § 1.

Cross References.

Garnishee’s witness fee, § 10-17-6 .

Collateral References.

Contract for extra compensation, validity of. 16 A.L.R. 1457; 41 A.L.R. 1322; 45 A.L.R. 1423.

9-29-8. Certification as to witness fees.

Every witness before obtaining any fees, except the amount which in certain cases must be tendered to him or her before he or she can be compelled to attend, shall give a certificate to the clerk of the court wherein or before whom his or her attendance shall be given, certifying the number of days he or she shall have attended and the number of miles he or she shall have traveled, in pursuance of a summons issued for that purpose, which certificate shall be subject to the examination of the court, and the allowance shall be made thereon as may be lawfully due; provided, that a certificate may be made for travel and attendance without a summons, in case a witness for the state comes from without the state.

History of Section. G.L. 1896, ch. 295, § 11; G.L. 1909, ch. 364, § 10; G.L. 1923, ch. 417, § 10; G.L. 1938, ch. 633, § 11; G.L. 1956, § 9-29-8 .

9-29-9. Fees of sheriffs, sergeants, and constables.

  1. The fees, including mileage, of deputy sheriffs, town sergeants, and constables, for which a deposit to insure payment may be required, shall not exceed the following:
    1. For serving any writ of replevin, or out of state papers $100.00 (2) For serving all other writs, citations, or subpoenas $45.00 (3) For a writ copy of every one hundred words $2.00 (4) For every writ returned when the defendant cannot be found $15.00 (5) For serving any writ of arrest or body attachment $100.00

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  2. The above fees shall be deposited as general revenue.

History of Section. P.L. 1991, ch. 44, art. 20, § 2; P.L. 1992, ch. 133, art. 7, § 1; P.L. 1992, ch. 466, § 1; P.L. 1995, ch. 370, art. 40, § 40; P.L. 2006, ch. 587, § 1; P.L. 2012, ch. 324, § 21.

Repealed Sections.

Former § 9-29-9 (G.L. 1896, ch. 295, § 12; P.L. 1897, ch. 444, § 1; P.L. 1898, ch. 578, § 1; P.L. 1900, ch. 714, § 1; P.L. 1901, ch. 831, § 1; C.P.A. 1905, § 1200; P.L. 1908, ch. 1580, § 1; G.L. 1909, ch. 364, § 11; P.L. 1918, ch. 1648, § 1; G.L. 1923, ch. 417, § 11; G.L. 1938, ch. 633, § 12; G.L. 1956, § 9-29-9 ; P.L. 1960, ch. 72, § 1; P.L. 1961, ch. 89, § 1; P.L. 1966, ch. 106, § 1; P.L. 1975, ch. 266, § 1; P.L. 1979, ch. 174, art. VII, § 8), concerning the same subject matter, was repealed by P.L. 1991, ch. 44, art. 20, § 1, effective June 7, 1991.

NOTES TO DECISIONS

Declaratory Judgment.

The question of the sheriff’s entitlement to fees for services rendered by the sheriff’s office to an attorney is a proper subject for declaratory judgment upon petition for same under §§ 9-30-1 9-30-1 6. Berberian v. Leonard, 99 R.I. 274 , 207 A.2d 294, 1965 R.I. LEXIS 430 (1965).

9-29-10. Compensation for keeping of attached personal property.

The superior court or district courts, upon petition made by any sheriff or other officer setting forth the facts on oath, may allow such fair compensation for the keeping of personal property attached and held on mesne process as shall on examination be found to be reasonable.

History of Section. G.L. 1896, ch. 295, § 13; C.P.A. 1905, § 1216; G.L. 1909, ch. 364, § 12; G.L. 1923, ch. 417, § 12; G.L. 1938, ch. 633, § 13; G.L. 1956, § 9-29-10 .

NOTES TO DECISIONS

Properly Granted.

The trial justice properly granted compensation according to this section, since it reimburses the constable for keeping the attached property, not for serving the writ, and also the record reflected that the defendant adequately cross-examined the constable on the subject of the costs he incurred in safeguarding the property. Shawmut Bank v. Costello, 643 A.2d 194, 1994 R.I. LEXIS 185 , 1994 R.I. LEXIS 188 (1994).

Property Held for Execution.

This section does not apply to fees for keeping property levied on execution. Doliver v. Collingwood, 15 R.I. 510 , 8 A. 711, 1887 R.I. LEXIS 26 (1887).

Refusing Bond.

Trial court did not abuse its discretion in disallowing storage fees subsequent to the time that the attaching officer improperly refused a bond tendered to recover possession of the attached property. Superior Glass Co. v. District Court of Sixth Judicial Dist., 48 R.I. 4 , 135 A. 50, 1926 R.I. LEXIS 2 (1926).

9-29-11. Allowances for service of search warrant and aid in other process.

A reasonable allowance may be made by any court or magistrate to an officer serving a search warrant and to any person employed by an officer as aid in the service of any process, whenever the allowance shall be adjudged necessary by the court or justice, not exceeding in any case one dollar ($1.00) per day to each person so employed.

History of Section. G.L. 1896, ch. 295, § 14; G.L. 1909, ch. 364, § 13; G.L. 1923, ch. 417, § 13; G.L. 1938, ch. 633, § 14; G.L. 1956, § 9-29-11 .

9-29-12. Certification and search fees.

To all recording and certifying officers, unless otherwise specifically provided, there shall be allowed:

  1. For every page of 100 words recorded or copies $.20 (2) For searching the records by the hour 1.00

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History of Section. G.L. 1896, ch. 295, § 6; G.L. 1909, ch. 364, § 6; P.L. 1920, ch. 1886, § 1; G.L. 1923, ch. 417, § 6; G.L. 1938, ch. 633, § 6; G.L. 1956, § 9-29-12 .

9-29-13. Naturalization fees.

No fee shall be required in any court upon any declaration or petition under the naturalization laws of the United States, or for any process or procedure thereunder, except as hereinafter provided. The clerk’s fee in such cases, including certificate, shall be five dollars ($5.00), which shall be deposited into the general fund and credited to the supreme court account.

History of Section. G.L. 1896, ch. 295, §§ 26, 27; G.L. 1909, ch. 364, §§ 22, 23; G.L. 1923, ch. 417, §§ 22, 23; G.L. 1938, ch. 633, §§ 22, 23; G.L. 1956, § 9-29-13 ; P.L. 1990, ch. 65, art. 55, § 1.

9-29-14. Legal Aid Society and Rhode Island Legal Services, Inc. exempt from fees.

Neither the Legal Aid Society of Rhode Island nor Rhode Island Legal Services, Inc. shall be required to pay any fees to the superior court, family court, or district courts or the clerks thereof or any fees or charges for the service or travel of deputy sheriffs for serving any writ, citation, subpoena or other process or for taking bail, bond, or inventory or for making copies of writs for or in behalf of the organizations or their clients; provided, however, that fees and charges authorized by law shall nevertheless be taxable as costs.

History of Section. G.L., ch. 417, § 22, as enacted by P.L. 1936, ch. 2393, § 1; G.L. 1938, ch. 633, § 25; G.L. 1956, § 9-29-14 ; P.L. 1992, ch. 85, § 1; P.L. 2012, ch. 324, § 21.

NOTES TO DECISIONS

Appeals.

This section does not apply to the fees required by § 9-12-10 for an appeal to superior court after trial in the district court. Ainsworth v. Saybrooke Mfg. Co., 60 R.I. 290 , 198 A. 348, 1938 R.I. LEXIS 146 (1938).

Presumption.

This section does not prevent the district court from making a determination of indigency and exercising its inherent power to waive filing fees, appeal costs, or other costs provided by statute; this section simply creates a specific presumption that Legal Aid Society clients have been determined to be unable to pay filing fees or other court costs. Silvestro v. Almonte, 484 A.2d 900, 1984 R.I. LEXIS 633 (1984).

9-29-14.1. The state exempt from fees.

The state of Rhode Island, its departments, agencies, boards, and commissions shall not be required to pay any fees, including appeal fees, to the superior court or district courts or the clerks thereof, or any fees or charges for the service or travel of deputy sheriffs for serving any writ, citation, subpoena, or other process or for taking bail, bond, or inventory or for making copies of writs for or in behalf of the state; provided, however, that fees and charges authorized by law shall nevertheless be taxable as costs.

History of Section. P.L. 1974, ch. 58, § 1; P.L. 2012, ch. 324, § 21.

9-29-15. Indorsement of fees on process.

Every officer who shall serve any process, civil or criminal, shall indorse thereon the several items which constitute the amount of his or her fees, and on failure thereof the fees shall not be taxed or allowed in any bill of costs, nor be recoverable by law.

History of Section. G.L. 1896, ch. 295, § 15; G.L. 1909, ch. 364, § 14; G.L. 1923, ch. 417, § 14; G.L. 1938, ch. 633, § 15; G.L. 1956, § 9-29-15 ; P.L. 1997, ch. 326, § 25.

Cross References.

Criminal liability for excessive fees or bond, § 11-42-1 .

9-29-16. Compensation of officers selected by attorney general.

The general assembly shall annually appropriate such sum as it may deem necessary to compensate the officers who shall be selected by the attorney general, who shall keep the names and make the disbursements and returns as provided by law.

History of Section. G.L. 1896, ch. 295, § 16; G.L. 1909, ch. 364, § 15; G.L. 1923, ch. 417, § 15; P.L. 1935, ch. 2250, § 149; G.L. 1938, ch. 633, § 16; G.L. 1956, § 9-29-16 .

9-29-17. Fixed salary provisions preserved.

None of the provisions of this chapter shall be construed to contravene in any manner the provisions of §§ 36-6-6 36-6-8 .

History of Section. G.L. 1938, ch. 633, § 26; G.L. 1956, § 9-29-17 .

9-29-18. Superior court fees.

  1. The superior court shall be allowed the following fees in full to be taxed in the bill of costs in every civil action:
    1. For entry of every civil action or petition $160.00. (2) For every writ of execution $50.00. (3) For the issuance of every citation $25.00.

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  2. In addition to the fees set forth in subsection (a) of this section, the superior court shall apply a technology surcharge on all filing fees assessed in accordance with § 8-15-11 .
  3. Provided, that ten dollars ($10.00) of the fee for the entry of every civil action or petition shall be forwarded to Rhode Island Legal Services.

History of Section. G.L., § 9-29-18 , as enacted by P.L. 1961, ch. 89, § 2; P.L. 1971, ch. 147, § 1; P.L. 1982, ch. 118, § 1; P.L. 1988, ch. 129, art. 24, § 1; P.L. 1989, ch. 274, § 2; P.L. 1992, ch. 133, art. 37, § 3; P.L. 1994, ch. 70, art. 35, § 3; P.L. 1994, ch. 70, art. 41, § 1; P.L. 1996, ch. 100, art. 43, § 1; P.L. 2003, ch. 376, art. 8, § 1; P.L. 2014, ch. 34, § 5; P.L. 2014, ch. 42, § 5.

Compiler’s Notes.

P.L. 2014, ch. 34, § 5, and P.L. 2014, ch. 42, § 5 enacted identical amendments to this section.

NOTES TO DECISIONS

Divorce.

Where the plaintiff questioned the authority of the defendant, as administrator of the family court, to impose an entry fee of $10.00 for each divorce petition filed, although there was an increase provided for superior court fees in domestic relations, the fact that the field of domestic relations was transferred to the family court did not make this section applicable to any court except the superior court and applied only to title 9. Berberian v. O'Neil, 111 R.I. 354 , 302 A.2d 301, 1973 R.I. LEXIS 1210 (1973).

9-29-19. Family court fees.

  1. The family court shall be allowed the following fees in full to be taxed in the bill of costs in every domestic relations or other civil proceeding:
    1. For the entry of every petition, complaint, or action $120.00. (2) For every writ of execution $40.00.

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  2. In addition to the fees as set forth herein, the family court shall apply a technology surcharge fee assessed in accordance with § 8-15-11 .
  3. Provided, that ten dollars ($10.00) of the fee for the entry of every petition, complaint or action shall be forwarded to Rhode Island Legal Services.

History of Section. P.L. 1976, ch. 164, § 1; P.L. 1979, ch. 373, § 9; P.L. 1982, ch. 118, § 1; P.L. 1988, ch. 129, art. 24, § 1; P.L. 1989, ch. 274, § 2; P.L. 1994, ch. 70, art. 35, § 3; P.L. 1994, ch. 70, art. 41, § 1; P.L. 1996, ch. 100, art. 43, § 1; P.L. 2009, ch. 372, § 1; P.L. 2009, ch. 381, § 1; P.L. 2014, ch. 34, § 5; P.L. 2014, ch. 42, § 5.

Compiler’s Notes.

P.L. 2014, ch. 34, § 5, and P.L. 2014, ch. 42, § 5 enacted identical amendments to this section.

9-29-20. Supreme court fees.

  1. The supreme court, by a majority of its members, shall have the power to prescribe by rule a fee of not more than one hundred fifty dollars ($150.00) for docketing a civil appeal or docketing any other proceeding brought to review a civil matter and to prescribe a waiver of the fee as to a person who is unable to pay the fee.
  2. The court may apply a technology or other surcharge for docketing a civil appeal or docketing any other proceeding brought before the court in an amount not to exceed eighty-five dollars ($85.00).

History of Section. P.L. 1976, ch. 328, § 1; P.L. 1982, ch. 118, § 1; P.L. 1988, ch. 129, art. 24, § 1; P.L. 1989, ch. 274, § 2; P.L. 1994, ch. 70, art. 35, § 3; P.L. 2014, ch. 34, § 5; P.L. 2014, ch. 42, § 5.

Compiler’s Notes.

P.L. 2014, ch. 34, § 5, and P.L. 2014, ch. 42, § 5 enacted identical amendments to this section.

9-29-21. Attorney or unrepresented party must sign papers — Sanctions for frivolous suits.

In any legal action based upon a cause of action arising on or after July 1, 1987, every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his or her individual name, whose address and telephone number shall be stated. A party who is not represented by an attorney shall sign his or her pleading, motion, or other paper and state his or her address and telephone number. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him or her that he or she has read the pleading, motion, or other paper; that to the best of his or her knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

History of Section. P.L. 1986, ch. 350, § 6; P.L. 1987, ch. 522, § 8.

NOTES TO DECISIONS

Applicability.

This section was enacted in 1986; however, by its terms it applies only to causes of action arising on or after July 1, 1987. Since the cause of action arose in 1973 when the plaintiff allegedly suffered the injury, any award of sanctions against the state could not be based on this statute. D'Amario v. State, 686 A.2d 82, 1996 R.I. LEXIS 283 (1996).

Award Vacated.

An award of attorney fees and sanctions was vacated without prejudice since the trial justice’s decision may have been colored somewhat by her earlier determination that the plaintiff had asserted frivolous breach-of-contract claims and then attempted to frustrate the court’s judgment in favor of the defendant on those claims. Women's Dev. Corp. v. City of Cent. Falls, 764 A.2d 151, 2001 R.I. LEXIS 2 (2001).

Chapter 29.1 The Court Improvement Project Fund [Repealed.]

9-29.1-1 — 9-29.1-4. Repealed.

History of Section. P.L. 1988, ch. 129, art. 24, § 2; P.L. 1991, ch. 365, § 2; P.L. 1992, ch. 133, art. 5, § 1; Repealed by P.L. 1994, ch. 70, art. 35, § 4, effective July 1, 1994.

Compiler’s Notes.

Former §§ 9-29.1-1 — 9-29.1-4 concerned the court improvement project fund.

Chapter 30 Uniform Declaratory Judgments Act

9-30-1. Scope.

The superior or family court upon petition, following such procedure as the court by general or special rules may prescribe, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.

History of Section. P.L. 1959, ch. 90, § 1; P.L. 1970, ch. 373, § 10.

Rules of Court.

Form of complaint for interpleader and declaratory relief, see Super. Ct. R. Civ. P., Form 18.

For rule governing declaratory judgment procedure, see Super. Ct. Civ. P. Rule 57.

Cross References.

Administrative rules, declaratory judgments as to validity or applicability, § 42-35-7 .

Comparative Legislation.

General proceedings concerning declaratory judgments:

Conn. Gen. Stat. § 52-29.

Uniform Declaratory Judgments Act:

Mass. Ann. Laws ch. 231A, § 1 et seq.

NOTES TO DECISIONS

Purpose.

The purpose of the Uniform Declaratory Judgments Act is to facilitate the termination of controversies. Fireman's Fund Ins. Co. v. E. W. Burman, Inc., 120 R.I. 841 , 391 A.2d 99, 1978 R.I. LEXIS 731 (1978).

The purpose of the Uniform Declaratory Judgment Act is to facilitate the termination of controversies. Capital Props. v. State, 749 A.2d 1069, 1999 R.I. LEXIS 222 (1999).

— Injunctive Relief.

Granting of injunctive relief in declaratory judgment action was beyond the court’s jurisdiction. Travelers Ins. Co. v. Nastari, 94 R.I. 55 , 177 A.2d 778, 1962 R.I. LEXIS 18 (1962).

Injunctive relief cannot be had under this chapter, at least in the first instance. Shipyard Drive-In-Theatre v. Scuncio, 107 R.I. 554 , 268 A.2d 820, 1970 R.I. LEXIS 807 (1970), cert. denied, 401 U.S. 1005, 91 S. Ct. 1252, 28 L. Ed. 2d 541, 1971 U.S. LEXIS 2476 (1971).

Where no coercive relief was prayed for under the provisions of the act, but the claim for injunctive relief was joined with the demand for declaratory relief, such a joinder is perfectly proper in view of the liberalized provisions for joinder under Rules 18 and 20, R. Civ. P., and the provisions for joinder do not increase the scope of the act. Duffy v. Mollo, 121 R.I. 480 , 400 A.2d 263, 1979 R.I. LEXIS 1802 (1979).

Even where injunctive relief cannot be had under this chapter in the first instance, nevertheless a claim for injunctive relief may be joined with a demand for declaratory relief in light of the liberalized provisions for joinder under Super. Ct. Civ. Rules 18 and 20. Parente v. Southworth, 448 A.2d 769, 1982 R.I. LEXIS 966 (1982).

Declaratory judgment action was the proper procedural vehicle for an inmate to challenge the computation of “good-time” credits awarded by the Rhode Island department of corrections because under the liberalized provisions of R.I. Super. Ct. R. Civ. P. 18 , 20, declaratory and injunctive relief could be sought in the same action. Gomes v. Wall, 831 A.2d 817, 2003 R.I. LEXIS 192 (2003).

Action by Insurer.

A tort defendant’s insurer was an indirect participant in the underlying litigation pending in the federal district court and in the state superior court, and had the option of raising any coverage questions in state court pursuant to the Rhode Island Declaratory Judgment Act. Aetna Casualty & Sur. Co. v. Kelly, 889 F. Supp. 535, 1995 U.S. Dist. LEXIS 9624 (D.R.I. 1995).

It was not necessary for the high court to decide whether an indemnification agreement that required subcontractor to indemnify the general contractor for liability for injuries to the subcontractor’s employee that were caused by the general contractor’s negligence, because there was no evidence the subcontractor had ever entered into an indemnification agreement with the general contractor; therefore, the court properly declared that the subcontractor’s liability insurer had no obligation to indemnify the general contractor. A.F. Lusi Constr., Inc. v. Peerless Ins. Co., 847 A.2d 254, 2004 R.I. LEXIS 81 (2004).

Contract Interpretation.

When a co-executor of a decedent’s estate, who was also one of the decedent’s sons, sought to use a credit, reflecting his anticipated share from the estate, in order to purchase three parcels of land from the estate, the contested credit provision in the offer document, which referenced the “Estate of Carolyn B. Haffenreffer,” unambiguously referred to the decedent’s overall estate and not just the probate estate because the decedent’s will, which was incorporated by reference into the offer document, employed a pour-over provision, providing for distribution of the probate estate and directing a large portion of the estate be distributed through a trust. Haffenreffer v. Haffenreffer, 994 A.2d 1226, 2010 R.I. LEXIS 64 (2010).

Easements.

Where the language of a parking easement was not so compelling as to clearly condition usage upon payment, a residential association was ordered to pay its share of expenses associated with the easement but did not require payment to a sinking fund; as the easement’s clear language did not contemplate such a fund. 360 Thames St. Condo. Ass'n v. Landing Dev. Co., 838 A.2d 874, 2003 R.I. LEXIS 207 (2003).

Effect of Legislation.

Persons who had been stopped by police officers and suspected of driving under the influence were not entitled to a declaratory judgment that the enactment of 2006 R.I. Pub. Laws 246 (budget bill), subsequent to the enactment of 2006 R.I. Pub. Laws 232 (refusal bill), negated the increased penalties of the refusal bill; the obvious purpose of the budget bill, to increase revenue for the Department of Health, and the purpose of the refusal bill, to add increased penalties to deter the operation of a motor vehicle while under the influence of liquor or drugs, were not irreconcilably repugnant and could be harmonized with each other. Such v. State, 950 A.2d 1150, 2008 R.I. LEXIS 78 (2008).

Election of Remedies.

Where a city had, by its own volition, sought to submit a dispute with the policemen’s union to grievance-arbitration proceedings, received an unfavorable decision, and returned to the courthouse to seek relief, the trial justice properly denied declaratory relief to the city by granting the union’s motion to dismiss the city’s petition for declaratory judgment. Pawtucket v. Lodge No. 4, Fraternal Order of Police, 545 A.2d 499, 1988 R.I. LEXIS 94 (1988).

Extent of Jurisdiction.

The jurisdiction of equity courts under this section to enter declaratory decrees extends only to cases where remedial decrees would be proper if asked for. Hanley v. Wetmore, 15 R.I. 386 , 6 A. 777, 1886 R.I. LEXIS 47 (1886).

The addition of a prayer for a declaratory decree cannot supply a deficiency in the proof of creation of a trust. Nusbaum v. Glickman, 57 R.I. 506 , 190 A. 692, 1937 R.I. LEXIS 125 (1937).

The superior court in a declaratory judgment proceeding does not have jurisdiction either to remove a fiduciary or order such fiduciary to perform any act. Gray v. Leeman, 94 R.I. 451 , 182 A.2d 119, 1962 R.I. LEXIS 107 (1962).

The legislature did not intend that a petition under the Uniform Declaratory Judgments Act was to take the place of a taxpayer’s suit. Pascale v. Capaldi, 95 R.I. 38 , 188 A.2d 378 (1963).

A declaratory judgment is not available for the purpose of requiring the warden of a correctional institution to impute good behavior credits in a proper manner. Sousa v. Langlois, 97 R.I. 196 , 196 A.2d 838, 1964 R.I. LEXIS 65 (1964).

It is not the function of the declaratory judgment statute to grant affirmative relief, and declarations, when made, cannot result in affirmative relief without further proceedings. Sousa v. Langlois, 97 R.I. 196 , 196 A.2d 838, 1964 R.I. LEXIS 65 (1964). See § 9-30-8 .

An attorney questioning a sheriff’s right to fees for services performed by the sheriff’s office has standing to petition the court for a declaratory judgment under the act. Berberian v. Leonard, 99 R.I. 274 , 207 A.2d 294, 1965 R.I. LEXIS 430 (1965).

The declaratory judgment statute is not intended to serve as a forum for the determination of abstract questions or the rendering of advisory opinions. Lamb v. Perry, 101 R.I. 538 , 225 A.2d 521, 1967 R.I. LEXIS 798 (1967).

A liability insurer seeking to avoid its contractual obligation to defend the insured on a personal injury action on the ground that the injury was intentionally inflicted cannot have this issue predetermined in an action for declaratory judgment. Employers' Fire Ins. Co. v. Beals, 103 R.I. 623 , 240 A.2d 397, 1968 R.I. LEXIS 841 (1968), overruled, Peerless Ins. Co. v. Viegas, 667 A.2d 785, 1995 R.I. LEXIS 285 (1995).

Where a contract for sale of realty was made subject to a zoning change and the town council denied the petition for change, appeal of which was pending in superior court, the court held that a declaratory judgment construing the contract as terminated by the denial by the town council of the zoning petition was properly granted. Theroux v. Bay Assocs., 114 R.I. 746 , 339 A.2d 266, 1975 R.I. LEXIS 1483 (1975).

The Uniform Declaratory Judgments Act requires that there be a justifiable controversy between a plaintiff and a defendant and does not authorize the superior court to give an advisory opinion upon hypothetical facts which are not in existence or may never come into being. Berberian v. Travisono, 114 R.I. 269 , 332 A.2d 121, 1975 R.I. LEXIS 1409 (1975).

The trial justice did not abuse her discretionary power in denying declaratory relief on the ground that the proper remedy would have been a petition for a writ of habeas corpus. Berberian v. Travisono, 114 R.I. 269 , 332 A.2d 121, 1975 R.I. LEXIS 1409 (1975).

The superior court has jurisdiction to decide the question of title to tide-flowed land. Providence & Worcester Co. v. Exxon Corp., 116 R.I. 470 , 359 A.2d 329, 1976 R.I. LEXIS 1297 (1976).

A contractual agreement to resolve disputes by resorting to a grievance procedure, rather than to the courts, is not destructive of the court’s subject matter jurisdiction and the court has the power to adjudicate the dispute. Cranston Teachers Ass'n v. Cranston Sch. Comm., 120 R.I. 105 , 386 A.2d 176, 1978 R.I. LEXIS 648 (1978).

Where a contract includes an agreement to resolve disputes by resorting to a grievance procedure rather than to the courts, the court retains subject matter jurisdiction by virtue of this section, but although it has the power to adjudicate the dispute, defendant’s motion for summary judgment pursuant to Rules of Civil Procedure 56 properly raised the distinct question whether the court should have exercised that power. Cranston Teachers Ass'n v. Cranston Sch. Comm., 120 R.I. 105 , 386 A.2d 176, 1978 R.I. LEXIS 648 (1978).

The superior court lacks subject matter jurisdiction to hear a suit contesting the authority of the tax administrator from collecting fees under the fuel-decal fee statute, § 31-36.1-3(a) ; the appropriate route for challenging the actions of the tax administrator is delineated in chapter 35 of title 42, the Administrative Procedures Act, and the appropriate forum for judicial review of a decision by the tax administrator lies in the district court. Owner-Operators Independent Drivers Ass'n v. State, 541 A.2d 69, 1988 R.I. LEXIS 52 (1988).

This section constitutes a clear waiver of the state’s Eleventh Amendment immunity in appropriate cases; since an action under 42 U.S.C. § 1981 is essentially a tort action where the wrongdoing is racial discrimination, and the plaintiff has pleaded such racial discrimination in her complaint, the state is properly haled into court. Tang v. Department of Elderly Affairs, 904 F. Supp. 55, 1995 U.S. Dist. LEXIS 13930 (D.R.I. 1995).

The Superior Court had jurisdiction to decide the matter where the state brought an action under the Uniform Declaratory Judgment Act and thereby waived sovereign immunity. Capital Props. v. State, 749 A.2d 1069, 1999 R.I. LEXIS 222 (1999).

An action pursuant to the uniform declaratory judgments statute invokes the original, rather than appellate, jurisdiction of the Superior Court. Bradford Assocs. v. R.I. Div. of Purchases, 772 A.2d 485, 2001 R.I. LEXIS 137 (2001).

Superior court had jurisdiction over an insured’s suit against an insurer, although the actual damages claimed were less than $5000, as (1) the insured claimed punitive damages in good faith, (2) she sought equitable relief, and (3) she sought a declaration of her rights. Zarrella v. Minn. Mut. Life Ins. Co., 824 A.2d 1249, 2003 R.I. LEXIS 106 (2003).

Superior court had jurisdiction over a wrongful death complaint brought under the Slayer’s Act, R.I. Gen. Laws § 33-1.1-1(3) , that sought civil liability for a criminal act under R.I. Gen. Laws § 9-1-2 ; the complaint essentially sought a declaration under the Uniform Declaratory Judgment Act, R.I. Gen. Laws § 9-30-1 et seq., that the husband was a slayer of the decedent. Once a declaration was made, a probate court could determine what effect that declaration had on asset distribution. Tyre v. Swain, 946 A.2d 1189, 2008 R.I. LEXIS 57 (2008).

In a political party’s suit against the State Board of Elections seeking to stop the Board from investigating a violation of R.I. Gen. Laws § 17-25-10.1 , the Superior Court had jurisdiction over the matter pursuant to the Uniform Declaratory Judgments Act, R.I. Gen. Laws § 9-30-1 , and not R.I. Gen. Laws § 42-35-15(a) ; the Board’s powers are explicitly derived from R.I. Gen. Laws § 17-7-8 and are explicitly exempt from the Administrative Procedures Act. R.I. Republican Party v. Daluz, 961 A.2d 287, 2008 R.I. LEXIS 113 (2008).

Trial court did not have jurisdiction to entertain a Uniform Declaratory Judgments Act claim under R.I. Gen. Laws § 9-30-1 by a property owner against a town because the owner lacked standing; the owner did not enjoy any special ownership rights or privileges with respect to the municipal parking lots the owner alleged the town improperly sold to a developer; the owner’s lease with the State did not mention adequate parking. N & M Props., LLC v. Town of W. Warwick, 964 A.2d 1141, 2009 R.I. LEXIS 17 (2009).

Because the plaintiff developer’s brought an action for a declaratory judgment on whether zoning ordinances that hindered its ability to develop a parcel of property were validly enacted, the motion judge should have construed the action as one for a declaratory judgment pursuant to R.I. Gen. Laws § 9-30-1 rather than as an appeal of the enactment of an amendment to a zoning ordinance under R.I. Gen. Laws § 45-24-71(a) . Since the question of whether the zoning ordinances violated the notice requirement of R.I. Gen. Laws § 45-24-53 could be the subject of a declaration, the case should have been decided under the declaratory judgment statute and not found to be time barred as effectively an “appeal.” Tucker Estates Charlestown, LLC v. Town of Charlestown, 964 A.2d 1138, 2009 R.I. LEXIS 18 (2009).

Passenger’s interest claim met the threshold requirement of the subject matter statute because the amount in controversy was over $10,000, plus the superior court had the power to entertain declaratory-judgment actions, and thus the superior court was vested with jurisdiction over the passenger’s claim. DeMarco v. Travelers Ins. Co., 102 A.3d 616, 2014 R.I. LEXIS 142 (2014).

Superior court’s decision in a declaratory judgment action did not circumvent the zoning board’s authority and jurisdiction over land-use and special-use permits, as the superior court adjudicated the existence and scope of a right-of-way over defendant’s abutting property for the benefit of plaintiff’s property, something within its jurisdiction to do. Plainfield Pike Dev., LLC v. Victor Anthony Props., 160 A.3d 995, 2017 R.I. LEXIS 74 (2017).

Homeowners were proper parties to seek an adjudication under the Uniform Declaratory Judgments Act (UDJA) that a university’s proposed use (construction of artificial-turf field hockey field) was unlawful and the university’s institutional master plan was deficient under applicable laws because (1) the homeowners’ alleged economic damages were an injury in fact for standing purposes under the UDJA, (2) the homeowners did not seek to compel a city to enforce the city’s zoning ordinance but only a declaration that zoning violations existed, and (3) the homeowners’ failure to seek available administrative remedies did not bar their request for declaratory relief. Key v. Brown Univ., 163 A.3d 1162, 2017 R.I. LEXIS 99 (2017).

Trial justice was not mandated to entertain a request for declaratory relief, as it was, rather, purely discretionary. While in light of the jurisdictional tension in the case involving a retirement board’s decision to place a pensioner on a waiting list to be reinstated within a fire department, it may have been prudent for the trial justice to decline to grant declaratory and injunctive relief rather than struggle with such a narrow path, it was not an abuse of discretion for the trial justice to soldier on in the case. Sauro v. Lombardi, 178 A.3d 297, 2018 R.I. LEXIS 17 (2018).

Illustrative Cases.

Trial court properly entered a declaratory judgment stating that a town council had no authority to remove members of the regional school building committee (RBC) and ordering the reinstatement of a former member, as the RBC was not a town office and neither the town’s charter nor 1958 R.I. Pub. Laws ch. 109, § 4 empowered the council to remove a member of the RBC once he or she had been appointed. Foster Glocester Reg'l Sch. Bldg. Comm. v. Sette, 996 A.2d 1120, 2010 R.I. LEXIS 73 (2010).

Trial court properly entered a declaratory judgment holding that the property division that created lot two was proper as the town subdivision regulation in effect in 1966 mirrored the language of 1945 R.I. Pub. Laws 1631, § 1, and provided that a subdivision existed when a lot was divided into two or more lots in such a manner as to require provision for a street; when lot two was created, there were separate access routes to lots two and three over coterminous rights-of-way, and a public road or street was not required. Reynolds v. Town of Jamestown, 45 A.3d 537, 2012 R.I. LEXIS 83 (2012).

In a condominium association’s declaratory judgment action, a trial court properly determined that a condominium unit owner was not permitted to rent his unit to a third tenant because the unambiguous condominium declaration clearly stated that a unit could not be rented more than two times in a single calendar year, the owner held individual, month-to-month tenancies with two tenants and, as such, the owner had reached the maximum number of annual rentals that were allowed under the declaration; thus, the owner’s proposed third lease agreement violated the declaration. Town Houses at Bonnet Shores Condo. Ass'n v. Langlois, 45 A.3d 577, 2012 R.I. LEXIS 93 (2012).

Review by Supreme Court.

Since proceeding for a declaratory judgment is neither an action at law nor a suit in equity but a novel statutory proceeding, and since the petition prays for preventive relief by injunction which is obtainable only in equity and since the cause has been concluded below by entry of a final decree as in equity rather than a judgment as at law, a review by appeal is the more appropriate remedy. Newport Amusement Co. v. Maher, 92 R.I. 51 , 166 A.2d 216, 1960 R.I. LEXIS 137 (1960).

Where injunctive relief was granted in declaratory judgment action and petitioner challenged the jurisdiction of the superior court to grant injunctive relief on the authority of the declaratory judgments statute, certiorari was a proper vehicle for review. Travelers Ins. Co. v. Nastari, 94 R.I. 55 , 177 A.2d 778, 1962 R.I. LEXIS 18 (1962).

Proceedings seeking declaratory judgment are neither an action at law nor a suit in equity but novel statutory proceedings, and where the proceedings below were concluded by the entry of a decree as in a suit in equity the appropriate review is by appeal. Gray v. Leeman, 94 R.I. 451 , 182 A.2d 119, 1962 R.I. LEXIS 107 (1962).

The proper remedy for appellate review on a petition for a declaratory judgment was by claim of appeal and not a bill of exceptions. Sousa v. Langlois, 97 R.I. 196 , 196 A.2d 838, 1964 R.I. LEXIS 65 (1964).

The Supreme Court of Rhode Island found no basis in R.I. Gen. Laws § 44-9-1 for the trial court’s declaration that a mortgagee to evade the consequences of its mortgagor’s failure to pay taxes by allowing a last-minute conveyance to the mortgagee; once the tax lien foreclosure process had truly begun, it was too late for such an alienation. First Bank & Trust Co. v. City of Providence, 827 A.2d 606, 2003 R.I. LEXIS 181 (2003).

Trial court properly denied an injured party’s petition for a declaratory judgment concerning underinsured motorist coverage; the Uniform Declaratory Judgments Act, R.I. Gen. Laws § 9-30-1 et seq., gave the trial court broad discretion in determining whether to grant declaratory relief, and the trial court did not abuse that discretion because an arbitration proceeding concerning the same insurance coverage was already in its advanced stages. Cruz v. Wausau Ins., 866 A.2d 1237, 2005 R.I. LEXIS 30 (2005).

— Certification of Questions.

The supreme court will not hereafter entertain certification of questions under § 9-24-27 in proceedings brought under the Uniform Declaratory Judgments Act. Sweeney v. Notte, 95 R.I. 68 , 183 A.2d 296, 1969 R.I. LEXIS 880 (1969).

State Agencies.

The Mount Hope Bridge Authority being a direct state agency cannot be subject to a declaration of rights under the Uniform Declaratory Judgments Act. Rhode Island Turnpike & Bridge Auth. v. Nugent, 95 R.I. 19 , 182 A.2d 427, 1962 R.I. LEXIS 119 (1962).

The trial justice did not err in denying petition of the director of public works of the state, petitioner conceding that he had no political, civil or property right in the freeway’s public facility, there being nothing in the record indicating he had any interest peculiar to himself and distinct from that of the general public, and no private rights of the petitioner were affected by the charging of a fee to the general public for the privilege of parking automobiles upon certain public lands; therefore, in this circumstance, petitioner was not qualified to bring a taxpayer’s suit under the Uniform Declaratory Judgments Act. Pascale v. Capaldi, 95 R.I. 513 , 188 A.2d 378, 1963 R.I. LEXIS 31 (1963).

Whether judicial decision that city police and firefighters’ pensions are exempt from the state personal income tax applies by analogy to exempt all state employees, municipal employees and/or their respective beneficiaries who are recipients of pensions, annuities or retirement allowances and also certain pensions held in employees trust from the state income tax law was a question that could not serve as a proper basis for an advisory opinion; the tax administrator, however, because of the duty imposed upon him to collect all taxes due the state and as guardian of the public interest that all such taxes be collected, had standing to seek a response to the question by invoking the pertinent provisions of the Uniform Declaratory Judgments Act, § 9-30-1 et seq. In re Advisory Opinion to Governor, 483 A.2d 1078, 1984 R.I. LEXIS 625 (1984).

In a declaratory judgment suit brought by a political party and a gubernatorial campaign against the State Board of Elections seeking to stop the Board from investigating a violation of R.I. Gen. Laws § 17-25-10.1 , the trial court clearly erred by holding that the Board was required to adopt rules and regulations relevant to its regulatory powers before it could investigate complaints. However, since so much time had passed, and the available remedy was so nominal, the case no longer presented a sufficiently genuine case or controversy to warrant further review. R.I. Republican Party v. Daluz, 961 A.2d 287, 2008 R.I. LEXIS 113 (2008).

Collateral References.

“Actual controversy” under declaratory judgment statute in building restriction cases. 174 A.L.R. 853.

Availability of declaratory judgment to determine validity of lease of real property. 60 A.L.R.2d 400.

Coercive or executory relief as combinable with declaratory relief. 155 A.L.R. 501.

Contingent or defeasible future interest, right of owner of, to maintain action for declaratory judgment. 144 A.L.R. 806.

Counterclaim in action for declaratory judgment. 87 A.L.R. 1249.

Criminal statutes and ordinances, validity, construction and application of, as proper subject for declaratory judgment. 10 A.L.R.3d 727.

Custody of child as proper subject of declaratory action. 170 A.L.R. 521.

Declaration of rights or declaratory judgments. 12 A.L.R. 52; 19 A.L.R. 1124; 50 A.L.R. 42; 68 A.L.R. 110; 87 A.L.R. 1205.

Declaratory judgment action under provision of Labor Management Relations Act (Taft-Hartley Act) conferring jurisdiction on Federal District Courts in action for violation of contract between employer and labor organization. 17 A.L.R.2d 614.

Declaratory judgment, during lifetime of spouses, as to construction of antenuptial agreement dealing with property rights or survivor. 80 A.L.R.2d 941.

Declaratory judgment proceeding as remedy for determining right or title to office in unincorporated private association. 82 A.L.R.2d 1169.

Declaratory judgment proceeding, right of parties to intervene in. 87 A.L.R. 1249.

Declaratory judgments act, actions under, as subject to limitations or conditions of jurisdiction imposed by other statutes. 149 A.L.R. 1103.

Declaratory judgments as res judicata. 87 A.L.R. 1241; 10 A.L.R.2d 782.

Declaratory judgments, practice and procedure. 87 A.L.R. 1243.

Declaratory or advisory relief respecting future interest. 172 A.L.R. 1347.

Declaratory relief as to breach of lessor’s covenant against use of his other property in competition with lessee-covenantee. 97 A.L.R.2d 4.

Declaratory relief from expulsion from professional association. 20 A.L.R.2d 531.

Declaratory relief from expulsion from social club or similar society. 20 A.L.R.2d 344.

Declaratory relief from suspension or expulsion from a church or religious society. 20 A.L.R.2d 421.

Defense of laches, mitigation of damages, or other equitable defenses in subsequent suit against him as affected by original availability to wrongdoer under declaratory judgment act. 131 A.L.R. 791.

Determination of seniority rights of employee as proper subject of declaratory action. 147 A.L.R. 1327.

Divorce decree, action under declaratory judgment act to test validity or effect of. 124 A.L.R. 1336.

Former judgment or decree, validity and effect of, as proper subject for consideration in declaratory action. 154 A.L.R. 740.

Inheritance or other rights in respect of another’s estate after death, questions regarding, as proper subject of declaratory action before latter’s death. 139 A.L.R. 1239.

In pari delicto, applicability of doctrine of, to suit for declaratory relief. 141 A.L.R. 1427.

Insurance questions, declaratory judgments on. 155 A.L.R. 519.

Issue as to negligence as a proper subject of declaratory judgment action. 28 A.L.R.2d 957.

Judicial declaration of validity or existence of common-law marriage. 92 A.L.R.2d 1102.

Jurisdiction of declaratory action as affected by pendency of another action or proceeding. 135 A.L.R. 934.

Labor dispute as proper subject of declaratory action. 170 A.L.R. 421.

Necessity of bona fide controversy as to which judgment will be res judicata. 12 A.L.R. 67; 19 A.L.R. 1124; 50 A.L.R. 42; 68 A.L.R. 110; 87 A.L.R. 1205.

Partnership or joint venture matters as subject of declaratory judgment. 32 A.L.R.2d 970.

Quieting title to, or removing cloud on title to, personal property, under declaratory judgments act. 105 A.L.R. 291.

Relief against covenant restricting right to engage in business or profession as subject of declaratory judgment. 10 A.L.R.2d 743.

Relief other than by dissolution in cases of intracorporate deadlock or dissension. 34 A.L.R.4th 13.

Remedy for refusal of corporation or its agent to register or effectuate transfer of stock. 22 A.L.R.2d 12.

Remedy or procedure to make effective rights established under declaratory judgment. 101 A.L.R. 689.

Scope of relief in declaratory judgment action with respect to unemployment compensation. 14 A.L.R.2d 826.

Statute or ordinance, interest necessary to maintenance of declaratory determination of validity of. 174 A.L.R. 549.

Tax questions as proper subject of action for declaratory judgment. 11 A.L.R.2d 359.

9-30-2. Power to construe.

Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

History of Section. P.L. 1959, ch. 90, § 2.

Law Reviews.

Rebecca M. Murphy, Murder, Fraud, and Tortious Interference: The Interplay Between Probate Court Jurisdiction and Superior Court Jurisdiction in Rhode Island, 20 Roger Williams U. L. Rev. 404 (2015).

Tatiana Gomez, 2019 Survey: Christy’s Auto Rentals, Inc. v. Massachusetts Homeland Insurance Co., 25 Roger Williams U. L. Rev. 547 (2020).

NOTES TO DECISIONS

Condition Precedent.

One seeking to have declared invalid a regulation of a city planning commission need not exhaust administrative remedies before proceeding under this act. Frank Ansuini, Inc. v. Cranston, 107 R.I. 63 , 264 A.2d 910, 1970 R.I. LEXIS 738 (1970).

Union seeking interpretation of § 28-9.2-13 , pertaining to requests for collective bargaining, was not barred from obtaining clarification because it had failed to exhaust its administrative remedies through the state labor relations board. Tiverton v. Fraternal Order of Police, Lodge #23, 118 R.I. 160 , 372 A.2d 1273, 1977 R.I. LEXIS 1441 (1977).

Where plaintiff’s rights are affected by an ordinance, they are entitled to bring a declaratory judgment action despite the possibility that administrative remedies might be available. Taylor v. Marshall, 119 R.I. 171 , 376 A.2d 712, 1977 R.I. LEXIS 1876 (1977).

Contracts.

The settlement agreement reached by injured party with another insurer which, should a judgment be obtained and remain unsatisfied, would be the basis of possible liability of insurance company not a party to the action in which settlement agreement was reached, is just such a document or writing in the nature of a contract as is expressly included in this section, the production of which could be required. Travelers Ins. Co. v. Nastari, 94 R.I. 55 , 177 A.2d 778, 1962 R.I. LEXIS 18 (1962).

Where a contract for sale of realty was made subject to a zoning change and the town council denied the petition for change, appeal of which was pending in superior court, the declaratory judgment construing the contract as terminated by the denial by the town council of the zoning petition was properly granted. Theroux v. Bay Assocs., 114 R.I. 746 , 339 A.2d 266, 1975 R.I. LEXIS 1483 (1975).

Insurer was entitled to declaratory relief where insured’s delay in notifying insurer of claim prejudiced insurer’s ability to investigate medical support for claim, and insurer had in effect lost its subrogation rights due to the delay. Pennsylvania General Ins. Co. v. Becton, 475 A.2d 1032, 1984 R.I. LEXIS 509 (1984).

Since prior case law had already determined that public policy concerns did not preclude enforcement of a Massachusetts auto insurance policy limiting liability coverage to accidents that occurred in Massachusetts, a trial court should have granted an auto insurer’s motion for summary judgment declaring that the insurer did not have to provide coverage for an accident that occurred in Rhode Island; Rhode Island’s own compulsory coverage provisions applied only to cars registered in Rhode Island. Robinson v. Mayo, 849 A.2d 351, 2004 R.I. LEXIS 112 (2004).

Although a visiting professor’s contract was not yet subject to renewal, she had standing to seek relief under the Uniform Declaratory Judgments Act, R.I. Gen. Laws § 9-30-1 et seq., to resolve the real uncertainty she had concerning her employment security with the university. Haviland v. Simmons, 45 A.3d 1246, 2012 R.I. LEXIS 119 (2012).

Disability Determinations.

Although § 42-28-21 does not provide any specific method of review of a determination by the superintendent of state police in respect to a disability pension, except that such determination shall be confirmed by the governor, the Superior Court has original jurisdiction to construe the rights and responsibilities of any party arising from a statute, pursuant to the powers conferred by this section. Canario v. Culhane, 752 A.2d 476, 2000 R.I. LEXIS 130 (2000).

Effect of Release.

Hearing justice erred in dismissing the former employer’s declaratory judgment action seeking a declaration that a release by the employee arising out of the settlement of a workers’ compensation claim released the employer from the employee’s claims before the Rhode Island Commission for Human Rights for disability discrimination. Family Dollar Stores of R.I., Inc. v. Araujo, 204 A.3d 1089, 2019 R.I. LEXIS 51 (2019).

Uniform Declaratory Judgments Act, § 9-30-1 et seq., clearly allows the holder of a release document to seek from the superior court a declaration as to the validity and enforceability of the release; prompt and definitive resolution of release-related issues is one of the many salutary efficiencies made possible by the Uniform Declaratory Judgments Act. Family Dollar Stores of R.I., Inc. v. Araujo, 204 A.3d 1089, 2019 R.I. LEXIS 51 (2019).

Election of remedies doctrine was inapplicable because it mattered not that a former employer opted not to have the discrimination case removed to superior court under § 28-5-24.1 as the employer did not commence the litigation before the Rhode Island Commission for Human Rights and thus did not affirmatively elect any remedy; consequently, the employer was entitled to have the question of the validity and enforceability of the contractual settlement agreement passed upon by the courts. Family Dollar Stores of R.I., Inc. v. Araujo, 204 A.3d 1089, 2019 R.I. LEXIS 51 (2019).

Doctrine of exhaustion of administrative remedies was inapplicable because the case did not involve a situation where a party was aggrieved by a decision of an agency and must exhaust all avenues of review within that agency before proceeding to court, but rather, the case involved a purely contractual issue. The validity and applicability of a release is a legal question, unquestionably within the jurisdiction and purview of the superior court. Family Dollar Stores of R.I., Inc. v. Araujo, 204 A.3d 1089, 2019 R.I. LEXIS 51 (2019).

Former employer’s declaratory judgment action with respect to the validity and enforceability of a release could proceed in superior court; it had not been established beyond a reasonable doubt that the employer would not be entitled to relief, and the former employee did not show beyond a reasonable doubt that the declaration requested was an impossibility. Family Dollar Stores of R.I., Inc. v. Araujo, 204 A.3d 1089, 2019 R.I. LEXIS 51 (2019).

Intent of Parties.

Since the provisions of a supermarket lease clearly and unambiguously established the amount and conditions of the rent, the courts were not authorized to examine what might have been the intent of the parties or to make changes in the terms of the lease. Vincent Co. v. First Nat'l Supermarkets, 683 A.2d 361, 1996 R.I. LEXIS 242 (1996).

Jurisdiction Notwithstanding Political Question.

Superior court had jurisdiction under chapter 30 of title 9 and § 8-2-13 to determine whether the governor had complied with the mandate of § 17-7-1 despite the underlying political nature of the issues. Roch v. Garrahy, 419 A.2d 827, 1980 R.I. LEXIS 1799 (1980).

No Subject Matter Jurisdiction Under This Section.

As a city retirement board’s petition seeking to confirm its decision to reduce a former city employee’s pension was brought under an ordinance providing for the reduction of pensions of city employees convicted of charges stemming from their employment, the matter did not properly invoke either the equity or the declaratory judgment jurisdiction of the superior court. Ret. Bd. of the Emples. Ret. Sys. of Providence v. Corrente, 111 A.3d 301, 2015 R.I. LEXIS 34 (2015).

Person Interested.

The status of plaintiffs as taxpayers and residents of a city, with no rights or legal relations except those which they shared with the public at large gave them no right to seek a declaratory judgment concerning the validity of a city ordinance amending the civil service system and creating a department of personnel. Lamb v. Perry, 101 R.I. 538 , 225 A.2d 521, 1967 R.I. LEXIS 798 (1967).

In the absence of a showing that the union to which a nurse belonged had breached its duty of fair representation by refusing to arbitrate the nurse’s complaint that the public employer had favored another nurse’s shift request over that over the plaintiff nurse, the nurse lacked standing to pursue an action seeking declaratory relief. DiGuilio v. R.I. Bhd. of Corr. Officers, 819 A.2d 1271, 2003 R.I. LEXIS 83 (2003).

A voter lacked standing to bring a declaratory judgment action seeking a declaration of whether the 2008 statewide election was a general election. The fact that the voter, as a taxpayer, paid a proportionate share of the cost of the election did not establish the personal stake or injury in fact that would provide him with standing to bring the action. Bowen v. Mollis, 945 A.2d 314, 2008 R.I. LEXIS 47 (2008).

Sheriff’s Fees.

The question of a sheriff’s right to fees for services performed by the sheriff’s office for an attorney constitutes a question of legal relations within the contemplation of this section. Berberian v. Leonard, 99 R.I. 274 , 207 A.2d 294, 1965 R.I. LEXIS 430 (1965).

Wills.

The superior court is vested with jurisdiction within the limited scope of declaring the rights and status of a specific legatee under the will. Gray v. Leeman, 94 R.I. 451 , 182 A.2d 119, 1962 R.I. LEXIS 107 (1962).

Since the 1972 repeal of § 9-24-28 , the Uniform Declaratory Judgments Act is the proper vehicle for bringing a will construction suit brought for federal tax purposes. Redmond v. Rhode Island Hosp. Trust Nat'l Bank, 120 R.I. 182 , 386 A.2d 1090, 1978 R.I. LEXIS 653 (1978).

Collateral References.

Validity, construction, and application of criminal statutes or ordinances as proper subject for declaratory judgment. 10 A.L.R.3d 727.

9-30-3. Construction of contracts.

A contract may be construed either before or after there has been a breach thereof.

History of Section. P.L. 1959, ch. 90, § 3.

Collateral References.

Garnishment of funds payable under building and construction contract. 16 A.L.R.5th 548.

9-30-4. Fiduciaries and other persons entitled to declaration of rights.

Any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, person who is mentally incompetent or insolvent, may have a declaration of rights or legal relations in respect thereto:

  1. To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others;
  2. To direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; or
  3. To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.

History of Section. P.L. 1959, ch. 90, § 4; P.L. 1999, ch. 83, § 9; P.L. 1999, ch. 130, § 9.

NOTES TO DECISIONS

Legatee’s Interest.

The superior court is vested with jurisdiction within the limited scope of declaring the rights and status of a specific legatee under the will. Gray v. Leeman, 94 R.I. 451 , 182 A.2d 119, 1962 R.I. LEXIS 107 (1962).

9-30-5. General powers not limited by enumerations of special powers.

The enumerations in §§ 9-30-2 , 9-30-3 , and 9-30-4 do not limit or restrict the exercise of the general powers conferred in § 9-30-1 , in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.

History of Section. P.L. 1959, ch. 90, § 5.

NOTES TO DECISIONS

Sale of Realty Contract.

Where a contract for sale of realty was made subject to a zoning change and the town council denied the petition for change, appeal of which was pending in superior court, the declaratory judgment construing the contract as terminated by the denial by the town council of the zoning petition was properly granted since the issue raised would not be resolved by the pending zoning action. Theroux v. Bay Assocs., 114 R.I. 746 , 339 A.2d 266, 1975 R.I. LEXIS 1483 (1975).

9-30-6. Discretionary with court to render judgment.

The court may refuse to render or enter a declaratory judgment or decree where the judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.

History of Section. P.L. 1959, ch. 90, § 6.

Rules of Court.

For rule governing declaratory judgment procedure, see Civil Procedure Rule 57.

NOTES TO DECISIONS

In General.

Where the trial judge granted a Super. Ct. R. Civ. P. 12(b)(6) motion to dismiss a declaratory judgment action, exercising his discretion under this section to hold that the matter was not ripe for determination, the Supreme Court reversed the 12(b)(6) dismissal, not on grounds that related to this section, but because the trial judge failed to apply the proper test under 12(b)(6), that is, whether it was clear beyond a reasonable doubt that plaintiff was not entitled to relief under any set of facts that might be proved. Redmond v. Rhode Island Hosp. Trust Nat'l Bank, 120 R.I. 182 , 386 A.2d 1090, 1978 R.I. LEXIS 653 (1978).

A declaratory judgment action which seeks to challenge the validity of a rezoning amendment must join the party who requested the amendment. Thompson v. Town Council of Town of Westerly, 487 A.2d 498, 1985 R.I. LEXIS 433 (1985).

Hearing.

Superior court has discretionary power to determine whether to grant or deny a petition for declaratory judgment only after petitioner has had a full hearing on the merits where the petitioner has standing to bring the petition and the subject matter is within the contemplation of the act. Berberian v. Leonard, 99 R.I. 274 , 207 A.2d 294, 1965 R.I. LEXIS 430 (1965).

Matters to Be Considered.

Where nothing in the record indicated that the terms and conditions of an insurance policy were unclear, unreasonable or unconscionable, and the issue of liability under the policy thus should have been decided on the basis of the terms of the policy and the complaint, the trial justice abused his discretion in denying the application for a declaratory judgment when he improperly considered questions of agency and notice which were not contained in the complaint. Fireman's Fund Ins. Co. v. E. W. Burman, Inc., 120 R.I. 841 , 391 A.2d 99, 1978 R.I. LEXIS 731 (1978).

Dismissal of a neighborhood association’s declaratory judgment action against a preservation society was appropriate because the issues presented in the association’s complaint—interpretation of zoning ordinances, review of the society’s application, and determination whether to grant a special use permit—were within a local zoning board of review’s jurisdiction and authority, and the association failed to exhaust its administrative remedies. Bellevue-Ochre Point Neighborhood Ass'n v. Preservation Soc'y of Newport Cnty., 151 A.3d 1223, 2017 R.I. LEXIS 8 (2017).

Parties.

In a declaratory judgment action, a failure to join indispensable parties was fatal; unit owners who received the benefit of a condominium association’s assessment for deck repairs, but who bore the financial burden of the reallocated costs as set forth in the judgment, should have been joined in the lawsuit. The unit owners who were not joined could sue to avoid paying the reassessments ordered by the judgment, and this was antithetical to the purpose of declaratory judgment actions. Burns v. Moorland Farm Condo. Ass'n, 86 A.3d 354, 2014 R.I. LEXIS 27 (2014).

9-30-7. Review.

All orders, judgments, and decrees under this chapter may be reviewed as other orders, judgments, and decrees.

History of Section. P.L. 1959, ch. 90, § 7; P.L. 1962, ch. 28, § 1; P.L. 1965, ch. 55, § 48.

NOTES TO DECISIONS

In General.

Since proceeding for a declaratory judgment is neither an action at law nor a suit in equity but a novel statutory proceeding, and since the petition prays for preventive relief by injunction which is obtainable only in equity and since the cause has been concluded below by entry of a final decree as in equity rather than a judgment as at law, a review by appeal is the more appropriate remedy. Newport Amusement Co. v. Maher, 92 R.I. 51 , 166 A.2d 216, 1960 R.I. LEXIS 137 (1960).

The granting of the remedy provided by this act is purely discretionary, but this discretion is not absolute and its exercise is subject to appropriate appellate review. Employers' Fire Ins. Co. v. Beals, 103 R.I. 623 , 240 A.2d 397, 1968 R.I. LEXIS 841 (1968), overruled, Peerless Ins. Co. v. Viegas, 667 A.2d 785, 1995 R.I. LEXIS 285 (1995).

A declaratory judgment action, not intervention, is the appropriate remedy for a newspaper to question an order of a trial court sealing depositions in a criminal prosecution. State v. Cianci, 496 A.2d 139, 1985 R.I. LEXIS 565 (1985).

The decision to grant a remedy under the Declaratory Judgments Act is purely discretionary, and a decision made in the exercise of a discretionary power should not be disturbed unless it clearly appears that such discretion has been improperly exercised or that there has been an abuse thereof. Lombardi v. Goodyear Loan Co., 549 A.2d 1025, 1988 R.I. LEXIS 131 (1988).

A declaratory judgment and the underlying findings of fact and law must be reviewed as any other judgment when it is before the Supreme Court on appeal. Casco Indem. Co. v. O'Connor, 755 A.2d 779, 2000 R.I. LEXIS 164 (2000).

Declaratory judgment action was the proper procedural vehicle for an inmate to challenge the computation of “good-time” credits awarded by the Rhode Island department of corrections because under the liberalized provisions of R.I. Super. Ct. R. Civ. P. 18 , 20, declaratory and injunctive relief could be sought in the same action. Gomes v. Wall, 831 A.2d 817, 2003 R.I. LEXIS 192 (2003).

Amended Laws.

Where the action was for a declaratory judgment, it was proper for the appeals court to consider the acts in question as they were amended subsequent to trial rather than as they existed at the time of trial. J. M. Mills, Inc. v. Murphy, 116 R.I. 54 , 352 A.2d 661, 1976 R.I. LEXIS 1244 (1976).

Dismissal of Action.

An order dismissing an action for declaratory judgment as to one of two defendants was not appealable. Goodyear Loan Co. v. Little, 107 R.I. 629 , 269 A.2d 542, 1970 R.I. LEXIS 814 (1970).

9-30-8. Supplemental relief.

Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application is deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree to show cause why further relief should not be granted forthwith.

History of Section. P.L. 1959, ch. 90, § 8.

Rules of Court.

For rule governing declaratory judgment procedure, see Super. Ct. R. Civ. P. Rule 57.

Law Reviews.

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

NOTES TO DECISIONS

Joinder of Claims.

Claims for affirmative relief based on a declaratory judgment, such as those for money damages, may be joined to the declaratory judgment action pursuant to the liberal provisions of Rule 18. Capital Props. v. State, 749 A.2d 1069, 1999 R.I. LEXIS 222 (1999).

Supplemental Proceedings.

Petitioner in declaratory judgment action is entitled to nothing more than a declaration of his rights and status, even though in appropriate cases some measure of temporary injunctive relief might, in the discretion of the court, be ordered, not by way of relief to petitioner, but for sole purpose of preventing a declaration to which petitioner is entitled from becoming moot, and if supplemental relief becomes necessary it is to be sought in subsequent proceedings under this section. Gray v. Leeman, 94 R.I. 451 , 182 A.2d 119, 1962 R.I. LEXIS 107 (1962).

This section clearly contemplates that where the declaration, when made, does not result in achieving the purpose for which the petition was brought, supplementary proceedings are required and may be brought pursuant thereto. Sousa v. Langlois, 97 R.I. 196 , 196 A.2d 838, 1964 R.I. LEXIS 65 (1964).

Where an insurer sought declaratory judgment that an uninsured motorist claim was not covered by its policy, the trial court retained jurisdiction after ordering contractually required arbitration and properly increased the arbitrator’s award beyond policy limits by adding prejudgment interests and costs; its award of interest was “further relief” under R.I.G.L. § 9-30-8 . Liberty Mut. Ins. Co. v. Tavarez, 797 A.2d 480, 2002 R.I. LEXIS 134 (2002), overruled in part, Metro. Prop. & Cas. Ins. Co. v. Barry, 892 A.2d 915, 2006 R.I. LEXIS 31 (2006).

9-30-9. Jury trial.

When a proceeding under this chapter involves the determination of an issue of fact, that issue shall be tried and determined in the same manner as issues of fact are tried and determined in other civil actions, and the right of trial by jury shall not be abridged.

History of Section. P.L. 1959, ch. 90, § 9; P.L. 1965, ch. 55, § 48.

Rules of Court.

For rule governing declaratory judgment procedure, see Super. Ct. R. Civ. P. Rule 57.

9-30-10. Costs.

In any proceeding under this chapter, the court may make such award of costs as may seem equitable and just.

History of Section. P.L. 1959, ch. 90, § 10.

NOTES TO DECISIONS

Attorney’s Fees.

Rhode Island has never once held that “costs” under this section include attorneys’ fees. Arnold v. Arnold, 187 A.3d 299, 2018 R.I. LEXIS 96 (2018).

Denial of Costs.

Although this section specifically provides for an allowance of costs, the denying of costs to a petitioner is not an abuse of the court’s discretion. Gray v. Leeman, 94 R.I. 451 , 182 A.2d 119, 1962 R.I. LEXIS 107 (1962).

9-30-11. Parties.

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, the municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard.

History of Section. P.L. 1959, ch. 90, § 11.

NOTES TO DECISIONS

Default.

Failure to serve the attorney general, who was an indispensable party to the action, effectively voided any default judgment entered, and thus there was no necessity for the defendant to make a showing of a meritorious defense in order to vacate the default judgment. Griffin v. Bendick, 463 A.2d 1340, 1983 R.I. LEXIS 1050 (1983).

Joinder Not Necessary.

Although the defendant husband protested that his children should have been named in a wrongful death action for the death of his wife, they would not have been affected by a declaration concerning the husband’s status as a slayer under R.I. Gen. Laws § 33-1.1-1(3) . The trial justice in no way was considering their rights as contingent beneficiaries. Tyre v. Swain, 946 A.2d 1189, 2008 R.I. LEXIS 57 (2008).

In a declaratory judgment action concerning the manner in which state education aid funds received by a regional school district were to be calculated and apportioned to constituent towns, the trial justice did not err in declining to dismiss the action because other school districts had not been joined, as no other persons or entities had an actual, present, adverse, and antagonistic interest in the judgment. Town of Warren v. Bristol Warren Reg'l Sch. Dist., 159 A.3d 1029, 2017 R.I. LEXIS 56 (2017).

Water and fire district failed to establish that the hearing justice erred when he determined that the owners of the 53 properties straddling the Middletown-Portsmouth border should not be joined as no demonstration was made that the parties claimed any interest that would be affected by the court’s declaration, or that the declaration would prejudice those owners’ rights. Middle Creek Farm, LLC v. Portsmouth Water & Fire Dist., 252 A.3d 745, 2021 R.I. LEXIS 64 (R.I. 2021).

Jurisdiction.

Fact that the non-diverse architect and engineer were named pursuant to the Uniform Declaratory Judgments Act, R.I. Gen. Laws § 9-30-1 et seq., in a builder’s action against a diverse owner concerning a construction contract did not relieve the builder of the obligation to allege sufficient facts supporting the claim that the architect and engineer had a legal interest in the proceeding; therefore, because the builder’s complaint stated no cause of action against them and the architect testified that he was joined so the case could not be heard in state court, the architect and builder were fraudulently joined to defeat diversity jurisdiction. Lawrence Builders, Inc. v. Kolodner, 414 F. Supp. 2d 134, 2006 U.S. Dist. LEXIS 5857 (D.R.I. 2006).

Necessary Joinder.

Where mayor sought a declaration determining the manner of selection of members for certain local boards the joinder of each member of each of the boards involved was a condition precedent to the exercise of jurisdiction. In re City of Warwick, 97 R.I. 294 , 197 A.2d 287 (1964). In accord with In re City of Warwick. See Sullivan v. Chafee, 703 A.2d 748, 1997 R.I. LEXIS 300 (1997).

Failure to join all persons who have an interest that would be affected by the declaration ordinarily is fatal to an action. Thompson v. Town Council of Town of Westerly, 487 A.2d 498, 1985 R.I. LEXIS 433 (1985).

Where landowners failed to join all the parties to the consent agreement as required under R.I. Gen. Laws § 9-30-11 in their declaratory judgment action against a city seeking relief from a consent agreement that affected the public’s riparian rights, the court could not assume subject-mater jurisdiction over the declaratory judgment action. Meyer v. City of Newport, 844 A.2d 148, 2004 R.I. LEXIS 57 (2004).

In a declaratory judgment action, a failure to join indispensable parties was fatal; unit owners who received the benefit of a condominium association’s assessment for deck repairs, but who bore the financial burden of the reallocated costs as set forth in the judgment, should have been joined in the lawsuit. The unit owners who were not joined could sue to avoid paying the reassessments ordered by the judgment, and this was antithetical to the purpose of declaratory judgment actions. Burns v. Moorland Farm Condo. Ass'n, 86 A.3d 354, 2014 R.I. LEXIS 27 (2014).

In fire district’s suit for a declaratory judgment that the district did not have to provide fire protection to a certain property, the fire district did not fail to join an indispensable party by not joining another fire district; the first district was contractually obligated to assume the second district’s responsibilities, so the first district was the proper party to seek clarification of those responsibilities. Moreover, the property owner failed to advance a meaningful appellate argument concerning the issue. Dunn's Corners Fire Dist. v. Westerly Ambulance Corps, 184 A.3d 230, 2018 R.I. LEXIS 55 (2018).

Town’s indispensable parties defense had not been adequately preserved for appellate review because the town never brought the indispensable party issue to the attention of the trial court except in a single sentence uttered at the very end of the summary judgment hearing. Ucci v. Town of Coventry, 186 A.3d 1068, 2018 R.I. LEXIS 90 (2018).

Service on Attorney General.

Failure to serve the attorney general in a declaratory-judgment action warranted dismissal of the action, even though the plaintiff complied with Sup. Ct. Rule 32 and the attorney general was shown to have declined an opportunity to brief the constitutional issues. Brown v. Samiagio, 521 A.2d 119, 1987 R.I. LEXIS 417 (1987).

Although rules relating to service of process must be followed and construed strictly, where an appearance by the assistant attorney general was made within the period that an answer was due in response to the plaintiffs’ complaint alleging the unconstitutionality of a statute, the procedural objectives of this section were effectuated. Owner-Operators Independent Drivers Ass'n v. State, 541 A.2d 69, 1988 R.I. LEXIS 52 (1988).

Where the plaintiffs notified the attorney general of his right to intervene pursuant to Rule 24(d), R.C.P., at the time they filed the complaint, and served the attorney general with a copy of the complaint and other pleadings, and where the attorney general later filed an answer in which he acknowledged service of process, the procedural objectives of this section were effectuated. Westerly Residents for Thoughtful Dev. v. Brancato, 565 A.2d 1262, 1989 R.I. LEXIS 155 (1989).

Trial justice’s denial of a motion to amend pleadings to include a defense that certain statutes are unconstitutional is not an abuse of discretion, where there is no indication that proper service was made upon the attorney general, as required by this section. Crossman v. Erickson, 570 A.2d 651, 1990 R.I. LEXIS 36 (1990).

The statute does not require that the attorney general be made a party to the action; it only requires that the attorney general “be served with a copy of the proceeding and be entitled to be heard.” The language indicates a legislative intention only to require that the attorney general be given notice of the proceedings and an opportunity to be heard on behalf of the state of Rhode Island. Under the statute the attorney general’s office has the option to intervene in an action, but in its discretion it may choose not to exercise this option. Snicker's, Inc. v. Young, 574 A.2d 1246, 1990 R.I. LEXIS 105 (1990).

Although the Attorney General should have been notified of these proceedings, the appeal will not be dismissed because the issues raised by this appeal are significant and the merits should be reached by the court. Retirement Bd. of the Employees Retirement Sys. v. Providence, 660 A.2d 721, 1995 R.I. LEXIS 189 (1995).

Defendant waived the claim that the magistrate in his probation violation case was not statutorily authorized to preside over the probation revocation hearing because the statutory authorization was not constitutional, as defendant did not raise the issue in the trial court and the issue was not novel. Further, defendant could not raise that issue on appeal because defendant did not serve the Attorney General with a copy of the proceeding if defendant intended to challenge the constitutionality of a statute, as was required by R.I. Gen. Laws § 9-30-11 . State v. Bouffard, 945 A.2d 305, 2008 R.I. LEXIS 43 (2008).

Collateral References.

Construction, application and effect of the Uniform Declaratory Judgments Act that all persons who have or claim any interest which would be affected by the declaration shall be made parties. 71 A.L.R.2d 723.

Prejudicial error in failure to comply with § 11 of the Uniform Declaratory Judgments Act that all persons who have or claim any interest which would be affected by the declaration shall be made parties. 71 A.L.R.2d 723.

9-30-12. Construction.

This chapter is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and is to be liberally construed and administered. The remedy provided by this chapter shall be cumulative and shall not exclude or prevent the exercise of any other right, remedy, or process heretofore allowed by law or by previous enactment of the legislature.

History of Section. P.L. 1959, ch. 90, § 12.

NOTES TO DECISIONS

In General.

Declaratory judgment is not the proper vehicle to litigate an alleged statutory violation which entails criminal and civil penalties. Chase v. Mousseau, 448 A.2d 1221, 1982 R.I. LEXIS 985 (1982).

Private citizens, even attorneys, did not have standing to seek declaratory relief by means of what was essentially a proceeding in quo warranto, challenging the right of Rhode Island’s chief justice to continue in office after accepting an appointment to a federal military review panel; only the attorney general could pursue such relief, and whether that officer should pursue it was not something that a court could compel. McKenna v. Williams, 874 A.2d 217, 2005 R.I. LEXIS 113 (2005).

Joinder of Actions.

Although the plaintiff’s claim is not properly a declaratory judgment action, since the claim does include a statutorily authorized request for judgment against the insurer, the liberal joinder principal in Super. Ct. R. Civ. Pro. Rule 18 is applicable; the trial court should not have dismissed the action, but should have allowed the plaintiff to pursue his direct statutory claim against the defendant-insurer pursuant to § 27-7-2 in this action. Doire v. Commerce Ins. Co., 692 A.2d 696, 1997 R.I. LEXIS 88 (1997).

Money Damages.

Uniform Declaratory Judgments Act does not provide for affirmative relief such as money damages. Chase v. Mousseau, 448 A.2d 1221, 1982 R.I. LEXIS 985 (1982).

Joinder of claims for declaratory judgment and for money damages is permissible under the liberal provisions of Super. Ct. Civ. Rule 18. Chase v. Mousseau, 448 A.2d 1221, 1982 R.I. LEXIS 985 (1982).

Claims for affirmative relief based on a declaratory judgment, such as those for money damages, may be joined to the declaratory judgment action pursuant to the liberal provisions of Rule 18. Capital Props. v. State, 749 A.2d 1069, 1999 R.I. LEXIS 222 (1999).

Other Remedies Available.

The trial justice did not abuse her discretionary power in declaring relief on the ground that the proper remedy would have been a petition for a writ of habeas corpus. Berberian v. Travisono, 114 R.I. 269 , 332 A.2d 121, 1975 R.I. LEXIS 1409 (1975).

Homeowners were proper parties to seek an adjudication under the Uniform Declaratory Judgments Act (UDJA) that a university’s proposed use (construction of artificial-turf field hockey field) was unlawful and the university’s institutional master plan was deficient under applicable laws because (1) the homeowners’ alleged economic damages were an injury in fact for standing purposes under the UDJA, (2) the homeowners did not seek to compel a city to enforce the city’s zoning ordinance but only a declaration that zoning violations existed, and (3) the homeowners’ failure to seek available administrative remedies did not bar their request for declaratory relief. Key v. Brown Univ., 163 A.3d 1162, 2017 R.I. LEXIS 99 (2017).

9-30-13. “Person” defined.

The word “person”, wherever used in this chapter, shall be construed to mean any person, partnership, joint stock company, unincorporated association, or society, or municipal or other corporation of any character whatsoever.

History of Section. P.L. 1959, ch. 90, § 13.

NOTES TO DECISIONS

State Not a “Person.”

Neither the state nor its officials acting in their official capacities are “persons” within the definition of this section. Capital Props. v. State, 749 A.2d 1069, 1999 R.I. LEXIS 222 (1999).

9-30-14. Provisions severable.

The several sections and provisions of this chapter, except §§ 9-30-1 and 9-30-2 , are hereby declared independent and severable, and the invalidity, if any, of any part or feature thereof shall not affect or render the remainder of the chapter invalid or inoperative.

History of Section. P.L. 1959, ch. 90, § 14.

9-30-15. Uniformity of interpretation.

This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees.

History of Section. P.L. 1959, ch. 90, § 15.

9-30-16. Short title.

This chapter may be cited as the “Uniform Declaratory Judgments Act”.

History of Section. P.L. 1959, ch. 90, § 16.

Chapter 31 Governmental Tort Liability

9-31-1. Tort liability of state.

  1. The state of Rhode Island and any political subdivision thereof, including all cities and towns, shall, subject to the period of limitations set forth in § 9-1-25 , hereby be liable in all actions of tort in the same manner as a private individual or corporation; provided, however, that any recovery in any such action shall not exceed the monetary limitations thereof set forth in this chapter.
  2. Except as otherwise provided herein, neither the State nor any other public body of the State of Rhode Island shall have any liability for any claim arising prior to December 31, 2002, from the failure of a computer, software program, database, network, information system, firmware, embedded chip, or any other device, whether operated by or on behalf of the State of Rhode Island or one of its agencies, departments, divisions, or any public body as defined in § 9-1-31.1(a)(1) , to interpret, produce, calculate, generate, or account for a date(s) or time(s) which date(s) or time(s) is associated with the year 2000 date change. This provision of this section shall apply without limitation to cities, towns, school committees, regional school committees, housing authorities, public libraries, sewer district, water districts, fire districts, agencies, authorities, boards, committees, subcommittees, councils and commissions. Provided that nothing herein contained shall exempt any public body from liability:
    1. For acts or omissions not in good faith, or
    2. For any malicious, willful, wanton, reckless or grossly negligent acts or omissions. Provided that the public entity will only be liable for the proportion of damages attributable to its own degree of fault, and provided further that any such liability shall be governed by the monetary limitations of this chapter.

History of Section. P. L. 1970, ch. 181, § 2; P.L. 1999, ch. 161, § 1; P.L. 1999, ch. 172, § 1.

Law Reviews.

For note and comment, Untangling the Public Duty Doctrine, see 10 Roger Williams U. L. Rev. 731 (2005).

2005 Survey of Rhode Island Law: Tort Law: Seide v. State, 875 A.2d 1259 (R.I. 2005), see 11 Roger Williams U. L. Rev. 929 (2006).

NOTES TO DECISIONS

Purpose.

The purpose of the Rhode Island Tort Claims Act is to provide effective relief for persons injured as a result of governmental negligence. Verity v. Danti, 585 A.2d 65, 1991 R.I. LEXIS 5 (1991).

Challenges to Statutes.

Claims by various individuals and organizations that § 11-19-40 failed to supply sufficient standards to guide the police department in the exercise of its authority to promulgate regulations to carry out the bingo statutory provisions, together with a request that the police be enjoined by the federal court from enforcing its regulations, were barred by the 11th Amendment and were clearly outside the scope of the statutory consent of the state, under this section, to be held “liable in . . . tort . . . .” Allendale Leasing, Inc. v. Stone, 614 F. Supp. 1440, 1985 U.S. Dist. LEXIS 17165 (D.R.I. 1985), aff'd, 788 F.2d 830, 1986 U.S. App. LEXIS 24760 (1st Cir. 1986).

Discretionary Indemnification of City Officer.

If an officer in the discharge of his public duty in good faith exceeds his authority and thereby becomes liable for damages for his actions, the municipality has the discretion to reimburse him for the legal expenses of a judgment thereby incurred. Plantations Indus. Supply v. Leonelli, 118 R.I. 513 , 374 A.2d 1031, 1977 R.I. LEXIS 1492 (1977).

Duty of Care.

When the government or its agent engages in an activity normally undertaken by private individuals in the course of their everyday lives, a duty arises under the common law to exercise reasonable care in the performance of this task. Governmental employees, like ordinary citizens, must operate their vehicles in a reasonably safe manner and avoid creating foreseeably unreasonable risks of harm to the motoring public. Catone v. Medberry, 555 A.2d 328, 1989 R.I. LEXIS 34 (1989).

The state, as landowner or park operator, acts as a private person might act who is the owner of land and who charges a fee to those who might come upon that land. That duty in accordance with recognized tort principles would be to maintain the property in a reasonably safe condition for the benefit of those persons who might come upon the land. O'Brien v. State, 555 A.2d 334, 1989 R.I. LEXIS 35 (1989).

If the activity the state was engaged in was one that a private individual typically performs, the state owes the public a duty of reasonable care and will be liable for a breach of that duty to the same extent a private individual would be in the same circumstances. Longtin v. D'Ambra Constr. Co., 588 A.2d 1044, 1991 R.I. LEXIS 48 (1991).

When the state engages in an activity that a private individual typically would not perform, such as the maintenance of state highways or the issuance of state drivers’ licenses, the public duty doctrine will shield the state from liability. Longtin v. D'Ambra Constr. Co., 588 A.2d 1044, 1991 R.I. LEXIS 48 (1991).

— “Egregious Conduct” Exception.

Under the “egregious conduct” exception to the public duty doctrine, the state is not immune from liability even though no special duty to the plaintiff in his or her individual capacity has been shown. The elements that must be established to find that a particular course of conduct is “egregious” are the following: (1) the state, in undertaking a discretionary action or in maintaining or failing to maintain the product of a discretionary action, creates circumstances that forced a reasonably prudent person into a position of extreme peril; (2) the state, through its employees or agents capable of abating the danger, had actual or constructive knowledge of the perilous circumstances; and (3) the state, having been afforded a reasonable amount of time to eliminate the dangerous condition, failed to do so. Haley v. Lincoln, 611 A.2d 845, 1992 R.I. LEXIS 157 (1992).

Aside from the special duty exception, a second exception to the public duty doctrine’s general tort immunity is the egregious conduct exception. This exception provides that when the state or its subdivision has knowledge that it has created a circumstance that forces an individual into a position of peril and subsequently chooses not to remedy the situation, the state or its subdivision can then be held liable for its negligence. Boland v. Town of Tiverton, 670 A.2d 1245, 1996 R.I. LEXIS 28 (1996).

— Special Duty.

The special duty doctrine, an exception to the public duty doctrine, will subject the state to liability despite the fact that the activity engaged in by the state was one that a private individual typically would not perform. In order for plaintiffs to come within the special duty doctrine, plaintiffs must show a breach of some duty owed them in their individual capacities and not merely a breach of some obligation owed the general public. Longtin v. D'Ambra Constr. Co., 588 A.2d 1044, 1991 R.I. LEXIS 48 (1991).

Abutting landowners whose property was damaged by the reconstruction of a state highway had standing pursuant to the special duty doctrine to sue the state. Longtin v. D'Ambra Constr. Co., 588 A.2d 1044, 1991 R.I. LEXIS 48 (1991).

The state may be liable when it performs a discretionary governmental action if the plaintiff can show that she comes within the “special duty” exception to the public duty doctrine. To satisfy the burden of qualifying for such an exception the plaintiff must demonstrate a breach of a duty owed by the state to the plaintiff in his or her individual capacity and “not merely a breach of some obligation owed the general public.” Haley v. Lincoln, 611 A.2d 845, 1992 R.I. LEXIS 157 (1992).

The public duty doctrine shields the state and its political subdivisions from tort liability arising out of discretionary governmental actions that are not ordinarily performed by private persons; however, notwithstanding that immunity, liability will attach if it can be determined in a particular setting that the state or its subdivision owed a special duty to the plaintiff. The existence of the special duty can be established when a plaintiff has had prior contact with state or municipal officials who then knowingly embark on a course of conduct that endangers the plaintiff, or when a plaintiff has otherwise specifically come within the knowledge of the officials so that the injury to that particularly identified plaintiff can be or should have been foreseen. Boland v. Town of Tiverton, 670 A.2d 1245, 1996 R.I. LEXIS 28 (1996).

Plaintiffs, parents of children who were abused while in foster care, argued that a district court should have found that the “special duty” exception to immunity under R.I. Gen. Laws § 9-31-1 was applicable given the conclusions in its substantive due process analysis that defendant social worker and her supervisor had a “special relationship” with plaintiffs and that plaintiffs’ evidence sufficed to show negligence. The argument ignored the district court’s finding that there was no evidence presented to show that defendants had any actual knowledge of a substantial risk of harm, plaintiffs did not present evidence showing that defendants could have reasonably foreseen that either of the adult males living in the foster home were likely to abuse the children, and the failure to present such evidence meant that plaintiffs could not satisfy the third prong of the special exception test and defendants remained entitled to immunity for the negligence claims brought against them in their official capacities. J.R. v. Gloria, 593 F.3d 73, 2010 U.S. App. LEXIS 1823 (1st Cir. 2010).

Federal Jurisdiction.

Where the state supreme court, in response to a question certified by a federal district court, ruled that this section manifested a legislative intent to waive the state’s Eleventh Amendment immunity to suits in federal court, that ruling was dispositive of the issue. Della Grotta v. Rhode Island, 781 F.2d 343, 1986 U.S. App. LEXIS 21783 (1st Cir. 1986), disapproved, Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45, 1989 U.S. LEXIS 2975 (1989).

There is no need to establish the existence of a special relationship between the state and a motorist who was killed in a collision with a state-owned dump truck simply because of the sovereign status of the state. Catone v. Medberry, 555 A.2d 328, 1989 R.I. LEXIS 34 (1989).

Pursuant to 28 U.S.C. § 1367(c)(3), a district court dismissed without prejudice, a Rhode Island Tort Claims Act suit filed by property owners whose property adjoined a retirement home where the court obtained supplemental jurisdiction over the property owners’ suit when it consolidated it with a related action brought by the retirement home’s owners and residents under the Fair Housing Act, 42 U.S.C. § 3601 et seq., but it had later entered summary judgment against the home’s owners and residents; there was no reason for the district court to retain jurisdiction over the property owners’ suit as their negligence and common law claims were based in state law and, by themselves, had no business in the district court. Caron v. City of Pawtucket, 307 F. Supp. 2d 364, 2004 U.S. Dist. LEXIS 3938 (D.R.I. 2004).

Negligence.

In relying upon the doctrine of judicial immunity in a negligence action, where the state failed to provide proof that a judge was responsible for failure of a capias order’s being cancelled, resulting in the arrest and imprisonment of the plaintiff, the jury was justified in finding negligence to have occurred in the clerk’s office, and the state was thus liable in tort for damages. Calhoun v. Providence, 120 R.I. 619 , 390 A.2d 350, 1978 R.I. LEXIS 711 (1978).

In suits brought against the state, plaintiffs must show a breach of some duty owed them in their individual capacities and not merely a breach of some obligation owed the general public. Ryan v. Department of Transp., 420 A.2d 841, 1980 R.I. LEXIS 1845 (1980).

The state is not subject to suit by individuals injured as a result of the state’s failure to keep its highways in good repair because the state’s duty in this situation is one owed to the general public and not a special duty owed to the individual drivers on state highways. Knudsen v. Hall, 490 A.2d 976, 1985 R.I. LEXIS 481 (1985).

In the absence of a special duty owed to the plaintiffs by the state to maintain painted highway “safety lines” near a railroad trestle, there was no basis for state liability for injuries to a passenger in a van which struck the trestle. Kowalski v. Campbell, 520 A.2d 973, 1987 R.I. LEXIS 412 (1987).

If the presence of a stake in a state park in the location where it is placed is a negligent act, and that negligent act is performed by an employee of the state and would subject a private person to liability under the circumstances, then the state is also responsible for any injury caused. O'Brien v. State, 555 A.2d 334, 1989 R.I. LEXIS 35 (1989).

Complaint alleging negligence in supervising a licensed day-care facility attended by the plaintiff ’s daughter may be broadly construed to allege a special duty owed by the state to the plaintiff. Gagnon v. State, 570 A.2d 656, 1990 R.I. LEXIS 38 (1990).

Although the public-duty doctrine applies to the design of school bus routes, the doctrine does not insulate municipalities from statutory liability for the negligent operation of school buses. Houle v. Galloway Sch. Lines, 643 A.2d 822, 1994 R.I. LEXIS 199 (1994).

Notice Requirements.

This statute did not repeal the notice required in actions against towns for injuries on highways. Tessier v. Ann & Hope Factory Outlet, 114 R.I. 315 , 332 A.2d 781, 1975 R.I. LEXIS 1416 (1975).

Pleading and Burden of Proof.

This section has been deemed a “blanket waiver” of the state’s sovereign immunity. This waiver does not, however, impose strict liability upon the state in all cases. A plaintiff must still necessarily plead and prove negligence on the part of the state. Longtin v. D'Ambra Constr. Co., 588 A.2d 1044, 1991 R.I. LEXIS 48 (1991).

Police Officer’s Duties.
— Drunk Drivers.

The act of a special police officer in stopping a car in a restaurant parking lot, ordering the occupants to park it in a vacant lot and to stay parked until they sobered up, then allowing one of the occupants to drive away did not create a special duty owed by the officer to the driver, later injured when the car collided with a utility pole and a tree. The duty imposed by § 31-27-2 (driving under the influence) upon police officers is public in nature. Therefore, the officer was not personally liable to the driver. Barratt v. Burlingham, 492 A.2d 1219, 1985 R.I. LEXIS 510 (1985).

Prejudgment Interest.

Prejudgment interest statute does not apply against the state, in action under Tort Claims Act, because such act imposes liability only for damages and prejudgment interest is not an element of damages since it is purely statutory and is peremptorily added to verdict by clerk of court. Andrade v. State, 448 A.2d 1293, 1982 R.I. LEXIS 999 (1982).

The providing of security within and by a housing authority was proprietary in nature; thus, an authority could be held liable for prejudgment interest on a judgment arising from injuries sustained by a claimant on housing authority premises. Housing Auth. v. Oropeza, 713 A.2d 1262, 1998 R.I. LEXIS 214 (1998).

Procedure.

When a governmental entity and/or its officials are sued for alleged negligence, the trial justice — rather than a jury — should determine the existence of any legal duties owing to the plaintiff and communicate to the jury what those duties consist of under the circumstances of the case. Kuzniar v. Keach, 709 A.2d 1050, 1998 R.I. LEXIS 132 (1998).

In an action against a municipality raising the issue of the special-duty exception to the public-duty doctrine, the trial court erred in leaving it entirely up to the jury whether the defendant municipality and certain of its officials owed a legal duty to the plaintiff. Kuzniar v. Keach, 709 A.2d 1050, 1998 R.I. LEXIS 132 (1998).

By failing to raise the claim during the administrative proceedings before the Administrative Review Board of the Department of Labor, the administrative law judge, or the Assistant Secretary for Occupational Safety and Health, the employees forfeited the claim that the state waived sovereign immunity under R.I. Gen. Laws § 9-31-1 on the employees’ whistleblower allegations. Taylor v. United States DOL, 440 F.3d 1, 2005 U.S. App. LEXIS 27094 (1st Cir. 2005).

Public Duty Doctrine.

The public duty doctrine shields the state and its political subdivisions from tort liability arising out of discretionary governmental actions that by their nature are not ordinarily performed by private persons. Haley v. Lincoln, 611 A.2d 845, 1992 R.I. LEXIS 157 (1992).

When a worker injured in a construction project sued a town for his injuries because it erroneously issued a building permit for the project without obtaining the contractor’s registration number, as required by R.I. Gen. Laws § 5-65-3(c) , the town was entitled to summary judgment because: (1) the issuance of building permits was immune under the public duty doctrine, despite the general waiver of sovereign immunity in R.I. Gen. Laws § 9-31-1 , as no private entity could do it; (2) the special duty exception to the public duty doctrine did not apply to the worker, as the building inspector who issued the building permit was not specifically aware of the worker, and R.I. Gen. Laws § 5-65-3(c) did not create a special duty to those in the worker’s position, because the statute’s duty was owed to the general public; and (3) the egregious conduct exception to the public duty doctrine did not apply because the inspector who issued the permit did not know it was issued to an unlicensed contractor, nor did the inspector know an unlicensed contractor was actually building this particular project. Torres v. Damicis, 853 A.2d 1233, 2004 R.I. LEXIS 146 (2004).

Summary judgment for a department in a case alleging distribution of contaminated food was improper because the government function at issue—the storage and distribution of food—was an activity that private persons and businesses performed regularly, so the public duty doctrine did not apply, and the department was not shielded from liability under R.I. Gen. Laws § 9-31-1 . Adams v. R.I. Dep't of Corr., 973 A.2d 542, 2009 R.I. LEXIS 104 (2009).

City was entitled to summary judgment in a driver’s suit claiming that dangerous traffic conditions at an intersection led to a traffic accident because the city’s placement of traffic-control devices was a discretionary governmental activity shielded from R.I. Gen. Laws § 9-31-1 liability under the public-duty doctrine; although the driver claimed that the public-duty doctrine did not apply in light of the guideline of R.I. Gen. Laws § 31-13-3 , the driver failed to cite any particular state mandate with which the city allegedly did not comply. Toegemann v. City of Providence, 21 A.3d 384, 2011 R.I. LEXIS 92 (2011).

Activity giving rise to plaintiff’s injuries was not a discretionary governmental function warranting immunity; plaintiff, a per diem contract nurse, asserted that the negligence of a nurse or housekeeper caused her slip and fall injuries, and regardless of whether this incident occurred in the Veterans Home or a private nursing home, the underlying function at issue, resident-patient care, remained unchanged, and the public-duty doctrine did not apply. Roach v. State, 157 A.3d 1042, 2017 R.I. LEXIS 45 (2017).

Public Transportation.

The operation of a public-transportation authority is proprietary in nature and therefore is not subject to the provisions of § 9-31-2 , which exempts from its limitations activities in which the state is engaged in a proprietary function during the commission of a tort. Rucco v. Rhode Island Pub. Transit Auth., 525 A.2d 43, 1987 R.I. LEXIS 476 (1987).

Public Transportation.

The operation of a public transportation authority is proprietary in nature and therefore is not subject to the provisions of § 9-31-2 , which exempts from its limitations activities in which the state is engaged in a proprietary function during the commission of a tort. Rucco v. Rhode Island Pub. Transit Auth., 525 A.2d 43, 1987 R.I. LEXIS 476 (1987).

Punitive Damages.

This section does not contemplate an award of punitive damages against the state since the language of this section does not expressly address the issue of punitive damages; a punitive damage award against the state or municipality is contrary to public policy. Graff v. Motta, 695 A.2d 486, 1997 R.I. LEXIS 194 (1997).

Scope.

Plaintiff’s complaint did not state a claim against the state upon which relief could be granted under this statute where he alleged that the illegal tax assessment of his real estate was a tort as contemplated by this statute. S. S. Kresge Co. v. Bouchard, 111 R.I. 685 , 306 A.2d 179, 1973 R.I. LEXIS 1262 (1973).

Waiver of state’s sovereign immunity under this section includes not only immunity from claims in tort but also immunity from claims for contribution on the state’s tortious conduct. Bowen v. Evanuk, 423 F. Supp. 1341, 1976 U.S. Dist. LEXIS 11771 (D.R.I. 1976).

The intent of the legislature in providing for governmental tort liability cannot be read so as to impose liability upon the State for any and all acts or omissions of its employees and officers which might cause injury to persons, and thereby subject every and all governmental functions to court action. Calhoun v. Providence, 120 R.I. 619 , 390 A.2d 350, 1978 R.I. LEXIS 711 (1978).

The demarcation point between state activities that are actionable and those which are not has primarily been drawn with reference to the personal immunities of government officials: judicial, prosecutorial, and legislative immunities. Calhoun v. Providence, 120 R.I. 619 , 390 A.2d 350, 1978 R.I. LEXIS 711 (1978).

A state which has waived its eleventh amendment immunity is not subject to suit for damages under 42 U.S.C. § 1983 or under an implied cause of action if its involvement in the wrong is no more than as employer of the offending officials. Naughton v. Bevilacqua, 458 F. Supp. 610, 1978 U.S. Dist. LEXIS 15494 (D.R.I. 1978), aff'd, 605 F.2d 586, 1979 U.S. App. LEXIS 11703 (1st Cir. 1979).

In this section, the state of Rhode Island has clearly and unambiguously agreed to appear in court and answer for certain wrongful behavior as if it were a private person. Marrapese v. Rhode Island, 500 F. Supp. 1207, 1980 U.S. Dist. LEXIS 14049 (D.R.I. 1980).

This section does evidence a waiver of eleventh amendment immunity in cases in which the alleged constitutional violation arises from activities that are in the nature of tort at common law. Marrapese v. Rhode Island, 500 F. Supp. 1207, 1980 U.S. Dist. LEXIS 14049 (D.R.I. 1980).

The fact that certain, traditionally protected kinds of governmental activity are outside the ambit of this section does not affect the scope of the state’s consent to liability for those kinds of activity admittedly within the sweep of the statute. Marrapese v. Rhode Island, 500 F. Supp. 1207, 1980 U.S. Dist. LEXIS 14049 (D.R.I. 1980).

The only respect in which the state of Rhode Island now differs from the ordinary tort defendant is that its liability is limited to $50,000. Marrapese v. Rhode Island, 500 F. Supp. 1207, 1980 U.S. Dist. LEXIS 14049 (D.R.I. 1980).

Since enactment of this section, the state, subject to certain limitations, is liable in all actions of tort in the same manner as a private individual or corporation. Ryan v. Department of Transp., 420 A.2d 841, 1980 R.I. LEXIS 1845 (1980).

The legislature did not intend for the Tort Claims Act to waive sovereign immunity as to the acts of state and municipal licensing agencies in their decisions to deny licenses. Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Rhode Island Lottery Comm'n, 553 F. Supp. 752, 1982 U.S. Dist. LEXIS 16453 (D.R.I. 1982).

The denial of a charitable raffle license is not traditionally tortious so as to make the Lottery Commission liable in tort in the same manner as a private individual under this section. Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Rhode Island Lottery Comm'n, 553 F. Supp. 752, 1982 U.S. Dist. LEXIS 16453 (D.R.I. 1982).

In the event that a correctional officer employed by the state is guilty of negligence which proximately causes death of inmate at hands of another inmate, and was not protected by personal immunity, the state is liable under doctrine of respondeat superior for negligence of its employee subject to monetary limitation set forth in § 9-31-2 . Saunders v. State, 446 A.2d 748, 1982 R.I. LEXIS 890 (1982).

The fact that a state has relinquished its sovereign immunity in its own courts is not determinative of whether it has waived its eleventh amendment immunity from suit in federal courts. Laird v. Chrysler Corp., 460 A.2d 425, 1983 R.I. LEXIS 910 (1983).

The broad language of this section, which unambiguously and without restriction holds the state “liable in all actions of tort in the same manner as a private individual or corporation [except for a limitation of damages] . . .” manifests, by overwhelming implication, a legislative intent to place the state in the same position as any other private litigant and thus amenable to suit in either state or federal court. Laird v. Chrysler Corp., 460 A.2d 425, 1983 R.I. LEXIS 910 (1983).

The language of this section manifests the state’s consent to liability as a joint tortfeasor and for contribution and/or indemnity “in the same manner as a private individual or corporation,” subject to the $50,000 ceiling on recovery provided by § 9-31-2 . Laird v. Chrysler Corp., 460 A.2d 425, 1983 R.I. LEXIS 910 (1983).

An action brought against the members of the Marine Fisheries Council and the Director of the department of environmental management in their official capacities was not an action in tort and was barred by sovereign immunity. Healey v. Bendick, 628 F. Supp. 681, 1986 U.S. Dist. LEXIS 29398 (D.R.I. 1986).

This section applies to all torts, not just those that could have been brought in “case.” Mesolella v. Providence, 508 A.2d 661, 1986 R.I. LEXIS 459 (1986).

This section constitutes a broad waiver of sovereign immunity, including Eleventh Amendment immunity. Pride Chrysler Plymouth, Inc. v. Rhode Island Motor Vehicle Dealers' License Comm'n, 721 F. Supp. 17, 1989 U.S. Dist. LEXIS 10817 (D.R.I. 1989).

Rhode Island, through the enactment of its Tort Claims Act, has waived its immunity to suit in federal court. You Vang Yang v. Sturner, 728 F. Supp. 845, 1990 U.S. Dist. LEXIS 525 (D.R.I.), op. withdrawn, 750 F. Supp. 558, 1990 U.S. Dist. LEXIS 15737 (D.R.I. 1990).

This section constitutes a waiver of the state’s eleventh amendment immunity to tort suits in federal court. Rosen v. Chang, 758 F. Supp. 799, 1991 U.S. Dist. LEXIS 3112 (D.R.I. 1991).

The state has not waived its immunity for traditional governmental activities such as the provision of welfare benefits and related “pass-through” payment of child support to Aid to Families with Dependent Children (AFDC) recipients. Kenyon v. Sullivan, 761 F. Supp. 951, 1991 U.S. Dist. LEXIS 5121 (D.R.I. 1991).

Venue.

Sections 9-31-1 through 9-31-7 contain no directions as to venue or procedure. Marrapese v. Rhode Island, 500 F. Supp. 1207, 1980 U.S. Dist. LEXIS 14049 (D.R.I. 1980).

On its face, this section is a blanket waiver of immunity; nothing in its language indicates that consent is restricted to appearances in Rhode Island courts. Marrapese v. Rhode Island, 500 F. Supp. 1207, 1980 U.S. Dist. LEXIS 14049 (D.R.I. 1980).

Collateral References.

Complaint as satisfying requirement of notice of claim upon states, municipalities, and other political subdivisions. 45 A.L.R.5th 109.

Construction and application of Severin Doctrine. 25 A.L.R.6th 265.

Governmental tort liability for detour accidents. 1 A.L.R.5th 163.

Liability of municipality or other governmental unit for failure to provide police protection from crime. 90 A.L.R.5th 273.

Liability of travel publication, travel agent, or similar party for personal injury or death of traveler. 2 A.L.R.5th 396.

Persons or entities upon whom notice of injury or claim against state or state agencies may or must be served. 45 A.L.R.5th 173.

Right of one governmental subdivision to sue another such subdivision for damages. 11 A.L.R.5th 630.

Sufficiency of notice of claim against local government unit as regards identity, name, address, and residence of claimant. 53 A.L.R.5th 617.

Sufficiency of notice of claim against local political entity as regards time when accident occurred. 57 A.L.R.5th 689.

Tort liability of public schools and institutions of higher learning for accident involving motor vehicle operated by student. 85 A.L.R.5th 301.

Waiver of, or estoppel to assert, failure to give or defects in notice of claim against state or local political subdivision — modern status. 64 A.L.R.5th 519.

9-31-2. Limitations of damages — State.

In any tort action against the state of Rhode Island or any political subdivision thereof, any damages recovered therein shall not exceed the sum of one hundred thousand dollars ($100,000); provided, however, that in all instances in which the state was engaged in a proprietary function in the commission of the tort, or in any situation whereby the state has agreed to indemnify the federal government or any agency thereof for any tort liability, the limitation on damages set forth in this section shall not apply.

History of Section. P.L. 1970, ch. 181, § 2; P.L. 1974, ch. 39, § 1; P.L. 1984, ch. 87, § 1.

Law Reviews.

Koye Idowu, 2017 Survey, Cases: Tort Law: Roach v. State, 23 Roger Williams U. L. Rev. 745 (2018).

NOTES TO DECISIONS

Construction With Other Laws.

Property owner’s federal takings claim against state agencies and state officials was unripe because the property owner did not show that a cause of action for inverse condemnation under Rhode Island law was unavailable or inadequate to compensate for takings. Even if the damages cap in R.I. Gen. Laws § 9-31-2 applied and compromised the adequacy of the state law inverse condemnation claim, the property owner’s takings claim would not be deemed ripe until the property owner pursued damages above the $ 100,000 limit. Downing/Salt Pond Ptnrs., L.P. v. Rhode Island, 2010 U.S. Dist. LEXIS 28123 (D.R.I. Mar. 19, 2010).

Correctional Institutions.

Maintenance of correctional institution is a governmental function; thus, limitation of damages established by this section applies to tort action involving maintenance of such institution. Saunders v. State, 446 A.2d 748, 1982 R.I. LEXIS 890 (1982).

In the event that a correctional officer employed by the state is guilty of negligence which proximately causes death of inmate at hands of another inmate, and was not protected by personal immunity, the state is liable under doctrine of respondeat superior for negligence of its employee subject to monetary limitation set forth in this section. Saunders v. State, 446 A.2d 748, 1982 R.I. LEXIS 890 (1982).

Government Employees.

The exemption from prejudgment interest for municipalities, deriving from the residual sovereign immunity and surviving the limited waiver of such immunity established by this section and § 9-31-3 , does not extend to government employees who are liable in tort. Pridemore v. Napolitano, 689 A.2d 1053, 1997 R.I. LEXIS 64 (1997).

Prejudgment Interest.

Prejudgment interest was appropriate because the Veterans Home acted in a proprietary, rather than governmental, manner; as the statutory tort cap was inapplicable, the State, like any private person, was subject to prejudgment interest. Roach v. State, 157 A.3d 1042, 2017 R.I. LEXIS 45 (2017).

Private Bills.

The General Assembly did not violate the equal protection provisions of the Rhode Island and United States constitutions by enacting legislation that authorized plaintiff to bring suit against the state of Rhode Island for an amount in excess of the limitation on damages set forth in the Governmental Tort Liability Act. Kennedy v. State, 654 A.2d 708, 1995 R.I. LEXIS 43 (1995).

Proprietary Function.

Statutory tort cap was inapplicable based on the Veterans Home’s performance of a proprietary function; while the Veterans Home was capable of fulfilling both governmental and proprietary functions, the events giving rise to liability—the resident-care functions of nurses or contracted housekeepers—constituted proprietary functions. Roach v. State, 157 A.3d 1042, 2017 R.I. LEXIS 45 (2017).

Public Schools.

The operation and maintenance of a public school is a governmental function and not a proprietary one. Therefore, the trial court properly limited the plaintiff’s damages to $100,000 under this section in an action in which the plaintiff, a shop teacher, was injured by wood dust and inadequate ventilation. Chakuroff v. Boyle, 667 A.2d 1256, 1995 R.I. LEXIS 297 (1995).

Public Transportation.

Maintaining a public transportation authority is a function that is not so intertwined with governing that it is a governmental function, rather it is proprietary in nature. Lepore v. Rhode Island Pub. Transit Auth., 524 A.2d 574, 1987 R.I. LEXIS 457 (1987).

Collateral References.

Liability of municipality or other governmental unit for failure to provide police protection from crime. 90 A.L.R.5th 273.

9-31-2.1. Limitation of damages — State — Commuter rail service.

  1. Agreements between the state and a railroad for the provision of commuter rail service shall provide that the state shall secure and maintain a liability insurance policy covering the liability of the state and the railroad for property damage, personal injury, bodily injury, and death arising out of the commuter rail service. The policy shall name the state as named insured, and the railroad as an additional insured, shall have policy limits of not less than seventy-five million dollars ($75,000,000) per occurrence annually and seventy-five million dollars ($75,000,000) in the aggregate annually, and shall be subject to self-insured retention in an amount up to seven million five hundred thousand dollars ($7,500,000). In no event shall the state or the railroad be liable in excess of the coverage limits of the insurance policy for any and all claims for damage, whether compensatory or punitive, for property damage, personal injury, bodily injury, and death arising out of the commuter rail service.
  2. For the purposes of this section, the term “railroad” shall include any person, railroad corporation, or other legal entity in the business of providing rail transportation that contracts with the state for the provision of commuter rail services and the term “commuter rail service” shall include all services performed by a railroad pursuant to a contract with the state in connection with the transportation of rail passengers including, but not limited to, the operation of trains, trackage, and equipment, or the construction, reconstruction, or maintenance of railroad equipment, tracks, and any appurtenant facilities or the provision of trackage rights over lines owned by any such railroad.

History of Section. P.L. 2006, ch. 623, § 1; P.L. 2006, ch. 634, § 1; P.L. 2012, ch. 415, § 18; P.L. 2018, ch. 231, § 2; P.L. 2018, ch. 258, § 2.

Compiler’s Notes.

P.L. 2018, ch. 231, § 2, and P.L. 2018, ch. 258, § 2 enacted identical amendments to this section.

9-31-3. Limitation of damages — Cities, towns, and fire districts.

In any tort action against any city or town or any fire district, any damages recovered therein shall not exceed the sum of one hundred thousand dollars ($100,000); provided, however, that in all instances in which the city or town or fire district was engaged in a proprietary function in the commission of the tort, the limitation of damages set forth in this section shall not apply.

History of Section. P.L. 1970, ch. 181, § 2; P.L. 1984, ch. 87, § 1; P.L. 1989, ch. 128, § 1.

Compiler’s Notes.

Section 2 of P.L. 1989, ch. 128 provides, in pertinent part, that this section shall not apply to all cases in which the cause of action arises after June 30, 1989.

Law Reviews.

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

NOTES TO DECISIONS

Application.

The trial justice properly limited plaintiffs’ damages to $100,000 each because the town (defendant) was engaged in a governmental, and not a proprietary, function when it committed the tort. L.A. Ray Realty v. Town Council, 698 A.2d 202, 1997 R.I. LEXIS 240 (1997).

A municipality cannot be held liable for prejudgment interest under R.I. Gen. Laws § 9-31-3 of the Rhode Island Tort Claims Act. Chrabaszcz v. Johnston Sch. Comm., 474 F. Supp. 2d 298, 2007 U.S. Dist. LEXIS 12822 (D.R.I. 2007).

Government Employees.

The exemption from prejudgment interest for municipalities deriving from the residual sovereign immunity and surviving the limited waiver of such immunity established by this section and § 9-31-2 does not extend to government employees who are liable in tort. Pridemore v. Napolitano, 689 A.2d 1053, 1997 R.I. LEXIS 64 (1997).

Prejudgment interest against an individual city employee may be awarded even though the city is not liable for such an award of interest. Matarese v. Dunham, 703 A.2d 1116, 1997 R.I. LEXIS 330 (1997). (modifying earlier opinion in Matarese v. Dunham, 689 A.2d 1057, 1997 R.I. LEXIS 65 (1997).

Award against a city employee in a personal injury action could not stand because the injured person failed to sue the employee in the employee’s individual capacity and therefore was entitled to recover damages as against the city only. Feeney v. Napolitano, 825 A.2d 1, 2003 R.I. LEXIS 32 (2003).

Prejudgment interest was properly awarded to a driver on a personal injury award against a town police officer even though no prejudgment interest was awarded on an award the driver obtained against the officer’s town employer. The exemption from prejudgment interest that the town enjoyed under the Governmental Tort Liability Act, R.I. Gen. Laws title 9, ch. 31, did not extend to the town’s employees, such as the officer, who was liable in tort. Andrade v. Perry, 863 A.2d 1272, 2004 R.I. LEXIS 183 (2004).

Maintenance of Buildings.

City was not liable for prejudgment interest when a city employee responsible for the maintenance and operation of government facilities was on twenty-four hour call when he caused a motor vehicle accident; maintenance of government buildings is plainly a governmental function, and the employee was therefore engaged in a governmental function and not a proprietary function at the time of the accident. Matarese v. Dunham, 689 A.2d 1057, 1997 R.I. LEXIS 65 , different results reached on reh'g, 703 A.2d 1116, 1997 R.I. LEXIS 330 (1997).

Collateral References.

Comment Note: Governmental Liability for Failure to Reduce Vegetation Obscuring View at Railroad Crossing or at Street or Highway Intersection. 50 A.L.R.6th 95.

9-31-4. Damages in excess of limitation.

The general assembly may, by special act, authorize actions of tort against cities and towns and fire districts in particular cases in which the amount of damages to be recovered may exceed one hundred thousand dollars ($100,000).

History of Section. P.L. 1970, ch. 181, § 2; P.L. 1984, ch. 87, § 1; P.L. 1989, ch. 128, § 1.

9-31-5. Claim appropriations.

Notwithstanding the provisions of this chapter, the general assembly may make such appropriations as it shall deem proper in payment of or settlement of claims against the state; provided, however, that there is hereby appropriated out of any money in the treasury not otherwise appropriated a sum sufficient to pay claims against the state settled pursuant to 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 that sum.

History of Section. P.L. 1970, ch. 181, § 2; P. L. 1973, ch. 255, § 1.

NOTES TO DECISIONS

Private Appropriations.

In the exercise of its “plenary power” the general assembly may appropriate public funds for private purposes provided that the minimum-vote requirements set forth in R.I. Const., art. VI, § 11 are met. Kennedy v. State, 654 A.2d 708, 1995 R.I. LEXIS 43 (1995).

9-31-6. Attorney general to appear.

In any action pursuant to this chapter against the state of Rhode Island, the attorney general, or any assistant attorney general authorized by him or her, shall represent the state in the action. The attorney general is authorized to compromise or settle any claim cognizable under this chapter after the institution of suit thereon, with the approval of the court in which the suit is pending.

History of Section. P.L. 1970, ch. 181, § 2.

9-31-7. Attorney for service.

In any action pursuant to this chapter against the state of Rhode Island, the attorney general is hereby designated as attorney for service for the state in the action.

History of Section. P.L. 1970, ch. 181, § 2.

9-31-8. Defense of state employees — Attorney general.

Except as provided in § 9-31-9 , the attorney general shall, upon a written request of an employee or former employee of the state of Rhode Island, defend any action brought against the state employee or former state employee, on account of an act or omission that occurred within the scope of his or her employment with the state.

History of Section. P.L. 1979, ch. 259, § 1.

NOTES TO DECISIONS

Arbitration.

The determination of whether the State had to defend and indemnify a state trooper who pled nolo contendere to assault of an arrestee was not an arbitrable issue within the collective bargaining process. Whether a state employee was acting within the scope of his or her employment, and is therefore entitled to a defense provided by the State, is a question that in the first instance is textually committed to the Attorney General under §§ 9-31-8 and 9-31-9 . State v. R.I. Troopers Ass'n, 187 A.3d 1090, 2018 R.I. LEXIS 100 (2018).

Attorney General’s Authority.

The Governmental Tort Liability Act, § 9-31-1 et seq., is an orderly statutory scheme enacted by the General Assembly that vests the Attorney General with the authority to determine whether a state employee qualifies for defense and indemnification. It does not interfere with the Governor’s power to enter into collective bargaining agreements, nor does it encroach on the General Assembly’s authority to determine the financial terms of state employees. State v. R.I. Troopers Ass'n, 187 A.3d 1090, 2018 R.I. LEXIS 100 (2018).

Judicial Review.

Attorney General’s refusal to defend and indemnify a state employee is judicially reviewable. State v. R.I. Troopers Ass'n, 187 A.3d 1090, 2018 R.I. LEXIS 100 (2018).

Scope of Employment.

Where the Attorney General declined to provide a legal defense to a state trooper in his individual capacity, the information before the Attorney General supported the decision that the state trooper’s conduct fell outside the scope of his employment and that a jury could conclude the state trooper acted willfully, as the state trooper pled nolo contendere to misdemeanor assault of the arrestee and a video recording captured the assault. State v. R.I. Troopers Ass'n, 187 A.3d 1090, 2018 R.I. LEXIS 100 (2018).

Collateral References.

Construction and application of Westfall Act provision providing federal employee immunity from ordinary tort suits if attorney general certifies that employee was acting within scope of office or employment at time of incident out of which claim arose (28 USCS § 2679(d)). 120 A.L.R. Fed. 95.

Payment of attorneys’ services in defending action brought against officials individually as within power or obligation of public body. 47 A.L.R.5th 553.

9-31-9. Refusal to defend — Attorney general.

The attorney general may refuse to defend an action referred to in § 9-31-8 if he or she determines that:

  1. The act or omission was not within the scope of employment;
  2. The act or the failure to act was because of actual fraud, willful misconduct, or actual malice;
  3. The defense of the action or proceeding by the attorney general would create a conflict of interest between the state of Rhode Island and the employee or former employee;
  4. Within ten (10) days of the time he or she is served with any summons, complaint, process, notice, demand, or pleading, the employee or former employee fails to deliver the original or a copy thereof to the attorney general or his or her designee; or
  5. The state employee or former state employee refuses to cooperate fully with the attorney general’s defense.

History of Section. P.L. 1979, ch. 259, § 1.

Law Reviews.

Crystal Peralta, 2018 Survey: State v. R.I. Troopers Ass’n, 24 Roger Williams U. L. Rev. 493 (2019).

NOTES TO DECISIONS

Arbitration.

The determination of whether the State had to defend and indemnify a state trooper who pled nolo contendere to assault of an arrestee was not an arbitrable issue within the collective bargaining process. Whether a state employee was acting within the scope of his or her employment, and is therefore entitled to a defense provided by the State, is a question that in the first instance is textually committed to the Attorney General under §§ 9-31-8 and 9-31-9 . State v. R.I. Troopers Ass'n, 187 A.3d 1090, 2018 R.I. LEXIS 100 (2018).

Indemnification.

R.I. Gen. Laws § 9-31-12(b) did not require a court to finally determine if the State would indemnify a state employee because the statute did not apply when the Attorney General refused to defend the employee based on factors in R.I. Gen. Laws § 9-31-9 . State v. R.I. Troopers Ass'n, 187 A.3d 1090, 2018 R.I. LEXIS 100 (2018).

Judicial Review.

Attorney General’s refusal to defend and indemnify a state employee is judicially reviewable. State v. R.I. Troopers Ass'n, 187 A.3d 1090, 2018 R.I. LEXIS 100 (2018).

Scope of Employment.

Where the Attorney General declined to provide a legal defense to a state trooper in his individual capacity, the information before the Attorney General supported the decision that the state trooper’s conduct fell outside the scope of his employment and that a jury could conclude the state trooper acted willfully, as the state trooper pled nolo contendere to misdemeanor assault of the arrestee and a video recording captured the assault. State v. R.I. Troopers Ass'n, 187 A.3d 1090, 2018 R.I. LEXIS 100 (2018).

9-31-10. Exclusive control over litigation.

Whenever the attorney general defends a state employee or former state employee pursuant to §§ 9-31-8 9-31-12 , the attorney general shall assume exclusive control over the representation of the employee or former state employee, and the employee or former state employee shall cooperate fully with the attorney general’s defense. The attorney general is authorized to compromise or settle any claims after the institution of suit thereon, with the approval of the court in which the suit is pending.

History of Section. P.L. 1979, ch. 259, § 1.

9-31-11. Conflict — Payment of counsel fees by state.

In the event there is a conflict of interest or the attorney general determines it is not in the best interest of the state or the state employee or former state employee to represent him or her, the state shall pay for reasonable counsel fees; provided, however, that the attorney general shall consult in advance with the prospective counsel to establish the parameters within which the state will be liable for attorneys’ fees; and provided, further, that their reasonableness shall ultimately be reviewed and approved by the court before paid.

History of Section. P.L. 1979, ch. 259, § 1.

NOTES TO DECISIONS

Attorney General’s Authority.

R.I. Gen. Laws § 9-31-11 did not limit the Attorney General’s authority to determine whether to defend and indemnify a state employee because the Attorney General did not find a conflict of interest preventing the Attorney General from representing the employee, but rather found the employee was disqualified from defense and indemnification provided by the State. State v. R.I. Troopers Ass'n, 187 A.3d 1090, 2018 R.I. LEXIS 100 (2018).

9-31-12. Indemnification — Reservation of obligation — Certification.

  1. The state reserves the right to determine whether or not it will indemnify any employees defended pursuant to §§ 9-31-8 9-31-11 , if a judgment is rendered against the employee.
  2. Upon certification by the court in which the tort action against a state employee is pending that (1) the defendant employee was acting within the scope of his or her office or employment when the claim arose, and (2) the claim does not arise out of actual fraud, willful misconduct, or actual malice by the employee, any civil action or proceeding commenced upon the claim under this statute shall be deemed to be an action or proceeding brought against the state under the provisions of this title and all references thereto, and the state shall be substituted as the party defendant.
  3. Nothing in this section shall affect the obligations of any insurer, including the obligation to defend and satisfy any settlement or award.

History of Section. P.L. 1979, ch. 259, § 1; P.L. 1995, ch. 45, § 1; P.L. 2007, ch. 346, § 1; P.L. 2007, ch. 377, § 1.

Law Reviews.

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

NOTES TO DECISIONS

Applicability.

R.I. Gen. Laws § 9-31-12(b) did not require a court to finally determine if the State would indemnify a state employee because the statute did not apply when the Attorney General refused to defend the employee based on factors in § 9-31-9 . State v. R.I. Troopers Ass'n, 187 A.3d 1090, 2018 R.I. LEXIS 100 (2018).

Substitution of Party.

Although R.I. Gen. Laws § 9-31-12 does not mandate that the action be dismissed against a state employee, substitution of the State as the defendant effectively removes the employee from the case. Mottola v. Cirello, 789 A.2d 421, 2002 R.I. LEXIS 18 (2002).

9-31-13. Arbitration of claims.

All actions brought under this chapter may, upon agreement of all parties to the action, be submitted to arbitration in accordance with § 8-6-5 and the rules and regulations promulgated thereunder, except that the state, its departments, agencies, boards, and commissions shall not be required to pay a filing fee for objecting to the arbitrator’s award and demanding a trial.

History of Section. P.L. 1988, ch. 401, § 1; P.L. 1991, ch. 159, § 1.

Chapter 32 Uniform Enforcement of Foreign Judgments Act

9-32-1. “Foreign judgment” defined.

In this chapter, “foreign judgment” means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.

History of Section. P.L. 1985, ch. 104, § 1.

Collateral References.

Construction and application of Uniform Foreign Money-Judgments Recognition Act. 88 A.L.R.5th 545.

9-32-2. Filing and status of foreign judgments.

A copy of any foreign judgment authenticated in accordance with the act of congress or the statutes of this state may be filed in the office of the clerk of the appropriate superior or district court. The clerk shall treat the foreign judgment in the same manner as a judgment of the superior or district court. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of the court and may be enforced or satisfied in like manner to any Rhode Island state court judgment.

History of Section. P.L. 1985, ch. 104, § 1.

NOTES TO DECISIONS

Full Faith and Credit.

Utah order denying a nonresident shareholder’s motion to dismiss for lack of personal jurisdiction was not entitled to full faith and credit in Rhode Island because the issue of personal jurisdiction as to the shareholder was not fully and fairly litigated and then finally decided in Utah. Neither the shareholder, nor counsel for the shareholder, appeared at a hearing in Utah on the shareholder’s motion to dismiss, and the Utah court’s order contained no discussion, analysis, or legal reasoning and merely referenced that plaintiff had made a prima facie showing of sufficient facts to establish personal jurisdiction. Hawes v. Reilly, 184 A.3d 661, 2018 R.I. LEXIS 57 (2018), cert. denied, 139 S. Ct. 1321, 203 L. Ed. 2d 564, 2019 U.S. LEXIS 1899 (2019).

9-32-3. Notice of filing.

  1. At the time of the filing of the foreign judgment, the judgment creditor or his or her lawyer shall make and file with the clerk of court an affidavit setting forth the name and last known post office address of the judgment debtor and the judgment creditor.
  2. Promptly upon the filing of the foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket. The notice shall include the name and post office address of the judgment creditor and the judgment creditor’s lawyer, if any, in this state. In addition, the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the clerk. Lack of mailing notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.
  3. No execution or other process for enforcement of a foreign judgment filed hereunder shall issue until 20 days after the date the judgment is filed.

History of Section. P.L. 1985, ch. 104, § 1.

9-32-4. Stay.

  1. If the judgment debtor shows the court that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was rendered.
  2. If the judgment debtor shows the court any ground upon which enforcement of a judgment of a court of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state.

History of Section. P.L. 1985, ch. 104, § 1.

9-32-5. Fees.

Any person filing a foreign judgment shall pay to the clerk of court the filing fee required by the court. Fees for docketing, transcription, or other enforcement proceedings shall be as provided for judgments of the court of this state.

History of Section. P.L. 1985, ch. 104, § 1.

9-32-6. Optional procedure.

The right of a judgment creditor to bring an action to enforce his or her judgment instead of proceeding under this chapter remains unimpaired.

History of Section. P.L. 1985, ch. 104, § 1.

9-32-7. Uniformity of interpretation.

This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

History of Section. P.L. 1985, ch. 104, § 1.

9-32-8. Short title.

This chapter may be cited as the “Uniform Enforcement of Foreign Judgments Act”.

History of Section. P.L. 1985, ch. 104, § 1.

Chapter 32.1 Uniform Foreign Money Claims Act

9-32.1-1. Short title.

This chapter shall be known and may be cited as the “Uniform Foreign Money Claims Act.”

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

9-32.1-2. Definitions.

The following words and terms shall have the following respective meanings, unless the context clearly indicates otherwise:

  1. “Action” means a judicial proceeding or arbitration in which a payment in money may be awarded or enforced with respect to a foreign money claim.
  2. “Bank-offered spot rate” means the spot rate of exchange at which a bank will sell foreign money at a spot rate.
  3. “Conversion date” means the banking day next preceding the date on which money, in accordance with this chapter, is:
    1. Paid to a claimant in an action or distribution proceeding;
    2. Paid to the official designated by law to enforce a judgment or award on behalf of a claimant; or
    3. Used to recoup, set-off, or counterclaim in different moneys in an action or distribution proceeding.
  4. “Distribution proceeding” means a judicial or non-judicial proceeding for the distribution of a fund in which one or more foreign money claims is asserted and includes an accounting, an assignment for the benefit of creditors, a foreclosure, the liquidation or rehabilitation of a corporation or other entity, and the distribution of an estate, trust or other fund.
  5. “Foreign money” means money other than money of the United States of America.
  6. “Foreign money claim” means a claim upon an obligation to pay, or a claim for recovery of a loss, expressed in or measured by foreign money.
  7. “Money” means a medium of exchange for the payment of obligations or a store of value authorized or adopted by a government or by inter-governmental agreement.
  8. “Money of the claim” means the money determined as proper pursuant to § 9-32.1-4 .
  9. “Person” means an individual, a corporation, government or governmental subdivision or agency, business trust, estate, trust, joint venture, partnership, association, two or more persons having a joint or common interest, or any other legal or commercial entity.
  10. “Rate of exchange” means the rate at which money of one country may be converted into money of another country in a free financial market convenient to or reasonably usable by a person obligated to pay or to state a rate of conversion. If separate rates of exchange apply to different kinds of transactions, the term means the rate applicable to the particular transaction giving rise to the foreign money claim.
  11. “Spot rate” means the rate of exchange at which foreign money is sold by a bank or other dealer in foreign exchange for immediate or next day availability or for settlement by immediate payment in cash or equivalent, by charge to an account, or by an agreed delayed settlement not exceeding two (2) days.
  12. “State” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or insular possession subject to the jurisdiction of the United States.

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

9-32.1-3. Scope.

  1. This chapter applies only to a foreign money claim in an action or distribution proceeding.
  2. This chapter applies to foreign money issues even if other law under the conflict of laws rules of this state applies to other issues in the action or distribution proceeding.

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

9-32.1-4. Variation by agreement.

  1. The effect of this chapter may be varied by agreement of the parties made before or after commencement of an action or distribution proceeding or the entry of judgment.
  2. Parties to a transaction may agree upon the money to be used in a transaction giving rise to a foreign money claim and may agree to use different moneys for different aspects of the transaction. Stating the price in foreign money for one aspect of a transaction does not alone require the use of that money for other aspects of the transaction.

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

9-32.1-5. Determining money of the claim.

  1. The money in which the parties to a transaction have agreed that payment is to be made is the proper money of the claim for payment.
  2. If the parties to a transaction have not otherwise agreed, the proper money of the claim, as in each case may be appropriate, is the money:
    1. Regularly used between the parties as a matter of usage or course of dealing;
    2. Used at the time of a transaction in international trade, by trade usage or common practice, for valuing or settling transactions in the particular commodity or service involved; or
    3. In which the loss was ultimately felt or will be incurred by the party claimant.

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

9-32.1-6. Determining the amount of money of certain contract claims.

  1. If an amount contracted to be paid in a foreign money is measured by a specified amount of a different money, the amount to be paid is determined on the conversion date.
  2. If an amount contracted to be paid in foreign money is to be measured by a different money at the rate of exchange prevailing on a date before default, that rate of exchange applies only to payments made within a reasonable time after default, not exceeding thirty (30) days. Thereafter, conversion is made at the bank-offered spot rate on the conversion date.
  3. A monetary claim is neither usurious nor unconscionable because the agreement on which it is based provides that the amount of the debtor’s obligation to be paid in the debtor’s money, when received by the creditor, must equal a specified amount of the foreign money of the country of the creditor. If, because of unexcused delay in payment of a judgment or award, the amount received by the creditor does not equal the amount of the foreign money specified in the agreement, the court or arbitrator shall amend the judgment or award accordingly.

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

9-32.1-7. Asserting and defending a foreign money claim.

  1. A person may assert a claim in a specified foreign money. If a foreign money claim is not asserted, the claimant makes the claim in United States dollars.
  2. An opposing party may allege and prove that a claim, in whole or in part, is in different money than that asserted by the claimant.
  3. A person may assert a defense, set-off, recoupment, or counterclaim in any money without regard to the money of other claims.
  4. The determination of the proper money of the claim is a question of law.

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

9-32.1-8. Judgments and awards on foreign money claims — Times of money conversion — Form of judgment.

  1. Except as provided in subsection (c), a judgment or award on a foreign-money claim must be stated in an amount of the money of the claim.
  2. A judgment or award on a foreign money claim is payable in that foreign money or, at the option of the debtor, in the amount of United States dollars which will purchase that foreign money on the conversion date at a bank-offered spot rate.
  3. Assessed costs must be entered in United States dollars.
  4. Each payment in United States dollars must be accepted and credited on a judgment or award on a foreign money claim in the amount of the foreign money that could be purchased by the dollars at a bank-offered spot rate of exchange at or near the close of business on the conversion date for that payment.
  5. A judgment or award made in an action or distribution proceeding on both: (1) A defense, set-off, recoupment, or counterclaim and (2) The adverse party’s claim, must be netted by converting the money of the smaller into the money of the larger, and by subtracting the smaller from the larger, and specify the rates of exchange used.
  6. A judgment substantially in the following form complies with subsection (a): [IT IS ADJUDGED AND ORDERED, that Defendant (insert name) pay to Plaintiff (insert name) the sum of (insert amount in the foreign money) plus interest on that sum at the rate of (insert rate — in accordance with § 9-32.1-10 ) percent a year or, at the option of the judgment debtor, the number of United States dollars which will purchase the (insert name of foreign money) with interest due, at a bank-offered spot rate at or near the close of business on the banking day next before the day of payment, together with assessed costs of (insert amount) United States dollars.]
  7. If a contract claim is of the type covered by subsection 9-32.1-4(a) or (b), the judgment or award must be entered for the amount of money stated to measure the obligation to be paid in the money specified for payment or, at the option of the debtor, the number of United States dollars which will purchase the computed amount of the money of payment on the conversion date at a bank-offered spot rate.
  8. A judgment must be filed and indexed in foreign money in the same manner, and has the same effect as a lien, as other judgments. It may be discharged by payment.

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

9-32.1-9. Conversions of foreign money in distribution proceeding.

The rate of exchange prevailing at or near the close of business on the day the distribution proceeding is initiated, governs all exchanges of foreign money in a distribution proceeding. A foreign money claimant in a distribution proceeding shall assert its claim in the named foreign money and show the amount of United States dollars resulting from a conversion as of the date the proceeding was initiated.

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

9-32.1-10. Prejudgment and judgment interest.

  1. With respect to a foreign money claim, recovery of pre-judgment or pre-award interest and the rate of interest to be applied in the action or distribution proceeding, except as provided in subsection (b), are matters of the substantive law governing the right to recovery under the conflict-of-laws rules of this state.
  2. The court or arbitrator shall increase or decrease the amount of pre-judgment or pre-award interest otherwise payable in a judgment or award in foreign money to the extent required by the law of this state governing a failure to make or accept an offer of settlement or offer of judgment, or conduct by a party or its attorney causing undue delay or expense.
  3. A judgment or award on a foreign money claim bears interest at the rate applicable to judgments of this state.

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

9-32.1-11. Enforcement of foreign judgments.

  1. If an action is brought to enforce a judgment of another jurisdiction expressed in a foreign money and the judgment is recognized in this state as enforceable, the enforcing judgment must be entered as provided in § 9-32.1-8 , whether or not the foreign judgment confers an option to pay in an equivalent amount of United States dollars.
  2. A foreign judgment may be filed in accordance with any rule or statute of this state providing a procedure for its recognition and enforcement.
  3. A satisfaction or partial payment made upon the foreign judgment, on proof thereof, must be credited against the amount of foreign money specified in the judgment, notwithstanding the entry of judgment in this state.
  4. A judgment entered on a foreign money claim only in United States dollars in another state must be enforced in this state in United States dollars only.

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

9-32.1-12. Determining United States dollar value of foreign money claims for limited purposes.

  1. Computations under this section are for the limited purposes of the section and do not affect computation of the United States dollar equivalent of the money of the judgment for the purpose of payment.
  2. For the limited purpose of facilitating the enforcement of provisional remedies in an action, the value in United States dollars of assets to be seized or restrained pursuant to a writ of attachment, garnishment, execution, or other legal process, the amount of United States dollars at issue for assessing costs, or the amount of United States dollars involved for a surety bond or other court-required undertaking, must be ascertained as provided in subsections (c) and (d).
  3. A party seeking process, costs, bond, or other undertaking under subsection (b) shall compute in United States dollars the amount of the foreign money claimed from a bank-offered spot rate prevailing at or near the close of business on the banking day next preceding the filing of a request or application for the issuance of process or for the determination of costs, or an application for a bond or other court-required undertaking.
  4. A party seeking the process, costs, bond, or other undertaking under subsection (b) shall file with each request or application an affidavit or certificate executed in good faith by its counsel or a bank officer, stating the market quotation used and how it was obtained, and setting forth the calculation. Affected court officials incur no liability, after a filing of the affidavit or certificate, for acting as if the judgment were in the amount of United States dollars stated in the affidavit or certificate.

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

9-32.1-13. Effect of currency revalorization.

  1. If, after an obligation is expressed or a loss is incurred in a foreign money, the country issuing or adopting that money substitutes a new money in place of that money, the obligation or the loss is treated as if expressed or incurred in the new money at the rate of conversion the issuing country establishes for the payment of like obligations or losses denominated in the former money.
  2. If substitution under subsection (a) occurs after a judgment or award is entered on a foreign money claim, the court or arbitrator shall amend the judgment or award by a like conversion of the former money.

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

9-32.1-14. Supplementary general principles of law.

Unless displaced by particular provisions of this chapter, the principles of law and equity, including the law merchant, and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating causes supplement its provisions.

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

9-32.1-15. Uniformity of application and construction.

This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

9-32.1-16. Severability.

If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

9-32.1-17. Legislative intent.

It is the intention of the general assembly that the official comments of the national conference of commissioners on uniform state laws pertaining to this chapter represent the express legislative intent of the general assembly and shall be used as a guide for interpretation of this chapter.

History of Section. P.L. 2009, ch. 248, § 1; P.L. 2009, ch. 266, § 1.

Chapter 33 Limits on Strategic Litigation Against Public Participation

9-33-1. Findings.

The legislature finds and declares that full participation by persons and organizations and robust discussion of issues of public concern before the legislative, judicial, and administrative bodies and in other public fora are essential to the democratic process, that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances; that such litigation is disfavored and should be resolved quickly with minimum cost to citizens who have participated in matters of public concern.

History of Section. P.L. 1993, ch. 354, § 1; P.L. 1993, ch. 448, § 1.

Law Reviews.

2000 Survey of Rhode Island Law, see 6 Roger Williams U. L. Rev. 593 (2001).

NOTES TO DECISIONS

Constitutionality.

This chapter is constitutional. Hometown Props. v. Fleming, 680 A.2d 56, 1996 R.I. LEXIS 188 (1996).

Freedom of Speech.

Since a citizen’s letters to the editor of a newspaper voicing his opinion on a public school construction project were exercises of free speech, summary judgment in favor of the citizen was appropriate as to the Limits on Strategic Litigation Against Public Participation Act (anti-SLAPP statute), R.I. Gen. Laws § 9-33-1 et seq. defense to the political representative’s libel and false light suit. Alves v. Hometown Newspapers, Inc., 857 A.2d 743, 2004 R.I. LEXIS 163 (2004).

Collateral References.

Application of Anti-SLAPP (Strategic Lawsuit Against Public Participation) Statutes to Defamation Claims Related to Websites or Internet Postings. 47 A.L.R.7th Art. 7 (2020).

9-33-2. Conditional immunity.

  1. A party’s exercise of his or her right of petition or of free speech under the United States or Rhode Island constitutions in connection with a matter of public concern shall be conditionally immune from civil claims, counterclaims, or cross-claims. Such immunity will apply as a bar to any civil claim, counterclaim, or cross-claim directed at petition or free speech as defined in subsection (e) of this section, except if the petition or free speech constitutes a sham. The petition or free speech constitutes a sham only if it is not genuinely aimed at procuring favorable government action, result, or outcome, regardless of ultimate motive or purpose. The petition or free speech will be deemed to constitute a sham as defined in the previous sentence only if it is both:
    1. Objectively baseless in the sense that no reasonable person exercising the right of speech or petition could realistically expect success in procuring the government action, result, or outcome, and
    2. Subjectively baseless in the sense that it is actually an attempt to use the governmental process itself for its own direct effects. Use of outcome or result of the governmental process shall not constitute use of the governmental process itself for its own direct effects.
  2. The court shall stay all discovery proceedings in the action upon the filing of a motion asserting the immunity established by this section; provided, however, that the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion.
  3. The immunity established by this section may be asserted by an appropriate motion or by other appropriate means under the applicable rules of civil procedure.
  4. If the court grants the motion asserting the immunity established by this section, or if the party claiming lawful exercise of his or her right of petition or of free speech under the United States or Rhode Island constitutions in connection with a matter of public concern is, in fact, the eventual prevailing party at trial, the court shall award the prevailing party costs and reasonable attorney’s fees, including those incurred for the motion and any related discovery matters. The court shall award compensatory damages and may award punitive damages upon a showing by the prevailing party that the responding party’s claims, counterclaims, or cross-claims were frivolous or were brought with an intent to harass the party or otherwise inhibit the party’s exercise of its right to petition or free speech under the United States or Rhode Island constitution. Nothing in this section shall affect or preclude the right of the party claiming lawful exercise of his or her right of petition or of free speech under the United States or Rhode Island constitutions to any remedy otherwise authorized by law.
  5. As used in this section, “a party’s exercise of its right of petition or of free speech” shall mean any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; or any written or oral statement made in connection with an issue of public concern.

History of Section. P.L. 1993, ch. 354, § 1; P.L. 1993, ch. 448, § 1; P.L. 1995, ch. 386, § 1.

Law Reviews.

2000 Survey of Rhode Island Law, see 6 Roger Williams U. L. Rev. 593 (2001).

NOTES TO DECISIONS

Action for Damages.

Anti-SLAPP (strategic litigation against public participation) statute, R.I. Gen. Laws 9-33, cannot reasonably be read as providing a mechanism by which a party may file a separate “SLAPP-back” lawsuit. Rather, the statute provides that, in the same civil action in which a party has successfully invoked the conditional immunity granted by the anti-SLAPP statute, the court in that case shall award compensatory damages and may award punitive damages pursuant to R.I. Gen. Laws § 9-33-2 ; there is no suggestion in the statute that there should subsequently be a separate civil action. Palazzo v. Alves, 944 A.2d 144, 2008 R.I. LEXIS 33 (2008).

Assertion of Immunity.

The “appropriate motion” or “or other appropriate means” described in the 1995 amendment of subsection (c) is a motion for summary judgment that will allow the hearing justice to consider information extrinsic to the pleadings. Hometown Props. v. Fleming, 680 A.2d 56, 1996 R.I. LEXIS 188 (1996).

Since a citizen’s letters to the editor of a newspaper voicing his opinion on a public school construction project were exercises of free speech, summary judgment in favor of the citizen was appropriate as to the Limits on Strategic Litigation Against Public Participation Act (anti-SLAPP statute), R.I. Gen. Laws § 9-33-1 et seq. defense to the political representative’s libel and false light suit. Alves v. Hometown Newspapers, Inc., 857 A.2d 743, 2004 R.I. LEXIS 163 (2004).

By electing to file a motion to dismiss in a first action against them for defamation by asserting conditional immunity under R.I. Gen. Laws § 9-33-2 the defendants lost any inchoate right to file a subsequent malicious prosecution action. The General Assembly obviated the need for a successful SLAPP litigant to file a subsequent lawsuit to recover damages by providing for the recovery of compensatory and punitive damages, as well as costs and attorneys’ fees, within the ambit of the anti-SLAPP suit itself. Palazzo v. Alves, 944 A.2d 144, 2008 R.I. LEXIS 33 (2008).

Because a condominium association’s correspondence with the Coastal Resource Management Commission regarding a unit owner’s application for expansion of his unit was aimed at procuring a favorable government outcome and reasonably stated that the owner did not exclusively own the property onto which he sought to expand, the correspondence enjoyed the free speech protections afforded by the anti-SLAPP statute, R.I. Gen. Laws § 9-33-2 . Sisto v. Am. Condo. Ass'n, 68 A.3d 603, 2013 R.I. LEXIS 114 (2013).

Attorneys’ Fees.

Although a neighbor who prevailed under the anti-SLAPP (Strategic Litigation Against Public Participation) statute, R.I. Gen. Laws § 9-33-2 , in a landowner’s abuse of process claim was entitled to attorneys’ fees under the statute, the motion justice did not abuse her discretion in finding the neighbor’s attorneys’ fees should not have included fees incurred in an unsuccessful summary judgment motion and unsuccessful petition for a writ of certiorari. Karousos v. Pardee, 992 A.2d 263, 2010 R.I. LEXIS 47 (2010).

Defendants prevailed under the limits on strategic litigation against public participation (anti-SLAPP) statute, and thus an award of attorney’s fees under R.I. Gen. Laws § 9-33-2(d) in defendants’ favor was mandatory. Sisto v. Am. Condo. Ass'n, 140 A.3d 124, 2016 R.I. LEXIS 95 (2016).

While the mandate made no mention of attorney’s fees in connection with the appeal, this did not preclude the superior court from subsequently awarding defendants attorney’s fees incurred in defending the judgment on appeal; fees were mandatory under the statute and thus the mandate left the determination of the proper award of fees to the superior court. Sisto v. Am. Condo. Ass'n, 140 A.3d 124, 2016 R.I. LEXIS 95 (2016).

Plaintiff challenged the award of attorney’s fees on the basis of res judicata, but the doctrine did not apply because no second cause of action had been filed, and the original cause of action remained ongoing. Sisto v. Am. Condo. Ass'n, 140 A.3d 124, 2016 R.I. LEXIS 95 (2016).

Hearing justice did not abuse his discretion in awarding attorney’s fees to defendants in connection with their appeal, as he reduced defendants’ request by 75% to more accurately reflect the time spent on the tangentially related claim under the limits on strategic litigation against public participation (anti-SLAPP) statute, and the billing records were not a diligent accounting for the time spent on the anti-SLAPP appeal; furthermore, the hearing justice then increased the reduced fee by 5% based on the complexity of the anti-SLAPP claim, and no abuse of discretion was found. Sisto v. Am. Condo. Ass'n, 140 A.3d 124, 2016 R.I. LEXIS 95 (2016).

Right of Petition.

In a suit by the owners of a city landfill against a city resident alleging tortious interference with contractual relations and defamation, the defendant’s written statements, submitted to an executive body as well as to legislators, were made in connection with an issue under consideration by the Department of Environmental Management and in connection with an issue of public concern, namely potential environmental contamination resulting from the plaintiff’s activities, and therefore clearly constituted an exercise of her right of petition and free speech within the meaning of subsection (e). Hometown Props. v. Fleming, 680 A.2d 56, 1996 R.I. LEXIS 188 (1996).

Sham Petitions.

The legislature intended the 1995 amendment to clarify and not to cloud the material provisions of this section, and intended that the term “tortious conduct” in the 1993 act be synonymous with the term “sham petitioning” in the 1995 amendment. Hometown Props. v. Fleming, 680 A.2d 56, 1996 R.I. LEXIS 188 (1996).

Waiver.

By not requesting compensatory and punitive damages in a first lawsuit against them for defamation in which they asserted conditional immunity under R.I. Gen. Laws § 9-33-2 , two brothers waived their damages claims. Moreover, their claims were barred by res judicata; the parties and the issues were identical, and the brothers’ damages claims could have, and should have, been made in the original action. Palazzo v. Alves, 944 A.2d 144, 2008 R.I. LEXIS 33 (2008).

Zoning Appeals.

Since the plaintiff presented insufficient facts and allegations to create a genuine issue of fact as to whether the defendant had probable cause to appeal a zoning amendment to the Superior Court, and, at trial, the defendant presented expert and lay testimony in support of its position, the defendant’s appeal of the zoning decision was not objectively baseless, and the appeal was not a “sham” that would bar the conditional immunity provided by this section. Cove Rd. Dev. v. Western Cranston Indus. Park Assocs., 674 A.2d 1234, 1996 R.I. LEXIS 134 (1996).

In a landowner’s abuse of process claim against a neighbor, the neighbor’s appeal to a zoning board was not a sham and warranted immunity under the anti-SLAPP (Strategic Litigation Against Public Participation) statute, R.I. Gen. Laws § 9-33-2(a)(2) , because the neighbor’s appeal was not subjectively baseless; the neighbor testified the purpose of the zoning appeal was to prevent the landowner from using a building on his property as a culinary school and the landowner failed to offer evidence the neighbor sought the zoning appeal for its direct effect and not for its outcome. Karousos v. Pardee, 992 A.2d 263, 2010 R.I. LEXIS 47 (2010).

Collateral References.

Application of Anti-SLAPP (Strategic Lawsuit Against Public Participation) Statutes to Defamation Claims Related to Websites or Internet Postings. 47 A.L.R.7th Art. 7 (2020).

Application of Noerr-Pennington Doctrine by state courts. 94 A.L.R.5th 455.

9-33-3. Intervention.

Any governmental agency or subdivision to which the party’s petition or free speech were directed or the attorney general may intervene to defend or otherwise support the party claiming lawful exercise of its right of petition or of free speech under United States or Rhode Island constitution.

History of Section. P.L. 1993, ch. 354, § 1; P.L. 1993, ch. 448, § 1; P.L. 1995, ch. 386, § 1.

9-33-4. Construction of chapter.

Nothing contained in this chapter shall be construed to limit or affect any additional constitutional, statutory, or common law protections of defendants in actions involving their exercise of rights of petition or of free speech.

History of Section. P.L. 1993, ch. 354, § 1; P.L. 1993, ch. 448, § 1; P.L. 1997, ch. 326, § 78.

Chapter 34 Uniform Foreign-Country Money Judgments Recognition Act

9-34-1. Short title.

This chapter shall be known and may be cited as the “Uniform Foreign-Country Money Judgments Recognition Act.”

History of Section. P.L. 2021, ch. 134, § 1, effective July 3, 2021; P.L. 2021, ch. 156, § 1, effective July 3, 2021.

Compiler's Notes.

P.L. 2021, ch. 134, § 1, and P.L. 2021, ch. 156, § 1 enacted identical versions of this chapter.

The Official Comments in this chapter are copyrighted by the National Conference of Commissioners on Uniform State Laws, and are reproduced by permission.

Applicability.

P.L. 2021, ch, 134, § 3, provides: “This act shall take effect upon passage [July 3, 2021] and shall apply to foreign and Canadian judgments obtained on or after the effective date of this act.”

P.L. 2021, ch, 156, § 3, provides: “This act shall take effect upon passage [July 3, 2021] and shall apply to foreign and Canadian judgments obtained on or after the effective date of this act.”

Official Comment.

Source: This section is an updated version of Section 9 of the Uniform Foreign Money-Judgments Recognition Act of 1962.

9-34-2. Definitions.

As used in this chapter:

  1. “Court” means the superior court.
  2. “Foreign country” means a government other than:
    1. The United States;
    2. A state, district, commonwealth, territory, or insular possession of the United States; or
    3. Any other government with regard to which the decision in this state as to whether to recognize a judgment of that government’s courts is initially subject to determination under the Full Faith and Credit Clause of the United States Constitution.
  3. “Foreign-country judgment” means a judgment of a court of a foreign country.

History of Section. P.L. 2021, ch. 134, § 1, effective July 3, 2021; P.L. 2021, ch. 156, § 1, effective July 3, 2021.

Official Comment.

Source: This section is derived from Section 1 of the Uniform Foreign Money-Judgments Recognition Act of 1962.

  1. The defined terms “foreign state” and “foreign judgment” in the 1962 Act have been changed to “foreign country” and “foreign-country judgment” in order to make it clear that the Act does not apply to recognition of sister-state judgments. Some courts have noted that the “foreign state” and “foreign judgment” definitions of the 1962 Act have caused confusion as to whether the Act should apply to sister-state judgments because “foreign state” and “foreign judgment” are terms of art generally used in connection with recognition and enforcement of sister-state judgments.  See, e.g.,Eagle Leasing v. Amandus, 476 N.W.2d 35 (S. Ct. Iowa 1991) (reversing lower court’s application of UFMJRA to a sister-state judgment, but noting lower court’s confusion was understandable as “foreign judgment” is term of art normally applied to sister-state judgments).  See also, Uniform Enforcement of Foreign Judgments Act § 1 (defining “foreign judgment” as the judgment of a sister state or federal court).
  2. The definition of “foreign-country judgment” in this Act differs significantly from the 1962 Act’s definition of “foreign judgment.” The 1962 Act’s definition served in large part as a scope provision for the Act. The part of the definition defining the scope of the Act has been moved to section 3, which is the scope section.
  3. The definition of “foreign-country judgment” in this Act refers to “a judgment” of “a court” of the foreign country. The foreign-country judgment need not take a particular form – any order or decree that meets the requirements of this section and comes within the scope of the Act under Section 3 is subject to the Act. Similarly, any competent government tribunal that issues such a “judgment” comes within the term “court” for purposes of this Act. The judgment, however, must be a judgment of an adjudicative body of the foreign country, and not the result of an alternative dispute mechanism chosen by the parties. Thus, foreign arbitral awards and agreements to arbitrate are not covered by this Act. They are governed instead by federal law, Chapter 2 of the U.S. Arbitration Act,  9 U.S.C. §§ 201- 208, implementing the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Chapter 3 of the U.S. Arbitration Act,  9 U.S.C. §§ 301- 307, implementing the Inter-American Convention on International Commercial Arbitration. A judgment of a foreign court confirming or setting aside an arbitral award, however, would be covered by this Act.
  4. The definition of “foreign-country judgment” does not limit foreign-country judgments to those rendered in litigation between private parties. Judgments in which a governmental entity is a party also are included, and are subject to this Act if they meet the requirements of this section and are within the scope of the Act under Section 3.

The 1962 Act defines a “foreign state” as “any governmental unit other than the United States, or any state, district, commonwealth, territory, insular possession thereof, or the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryuku Islands.” Rather than simply updating the list in the 1962 Act’s definition of “foreign state,” the new definition of “foreign country” in this Act combines the “listing” approach of the 1962 Act’s “foreign state” definition with a provision that defines “foreign country” in terms of whether the judgments of the particular government’s courts are initially subject to the Full Faith and Credit Clause standards for determining whether those judgments will be recognized. Under this new definition, a governmental unit is a “foreign country” if it is (1) not the United States or a state, district, commonwealth, territory or insular possession of the United States; and (2) its judgments are not initially subject to Full Faith and Credit Clause standards.

The Full Faith and Credit Clause, Art. IV, section 1, provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.” Whether the judgments of a governmental unit are subject to the Full Faith and Credit Clause may be determined by judicial interpretation of the Full Faith and Credit Clause or by statute, or by a combination of these two sources. For example, pursuant to the authority granted by the second sentence of the Full Faith and Credit Clause, Congress has passed 28 U.S.C.A. § 1738, which provides inter alia that court records from “any State, Territory, or Possession of the United States” are entitled to full faith and credit under the Full Faith and Credit Clause. In Stoll v. Gottlieb , 305 U.S. 165, 170 (1938), the United States Supreme Court held that this statute also requires that full faith and credit be given to judgments of federal courts. States also have made determinations as to whether certain types of judgments are subject to the Full Faith and Credit Clause. E.g. Day v. Montana Dept. Of Social & Rehab. Servs., 900 P.2d 296 (Mont. 1995) (tribal court judgment not subject to Full Faith and Credit, and should be treated with same deference shown foreign-country judgments). Under the definition of “foreign country” in this Act, the determination as to whether a governmental unit’s judgments are subject to full faith and credit standards should be made by reference to any relevant law, whether statutory or decisional, that is applicable “in this state.”

The definition of “foreign country” in terms of those judgments not subject to Full Faith and Credit standards also has the advantage of more effectively coordinating the Act with the Uniform Enforcement of Foreign Judgments Act. That Act, which establishes a registration procedure for the enforcement of sister state and equivalent judgments, defines a “foreign judgment” as “any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.” Uniform Enforcement of Foreign Judgments Act, § 1 (1964). By defining “foreign country” in the Recognition Act in terms of those judgments not subject to full faith and credit standards, this Act makes it clear that the Enforcement Act and the Recognition Act are mutually exclusive – if a foreign money judgment is subject to full faith and credit standards, then the Enforcement Act’s registration procedure is available with regard to its enforcement; if the foreign money judgment is not subject to full faith and credit standards, then the foreign money judgment may not be enforced until recognition of it has been obtained in accordance with the provisions of the Recognition Act.

9-34-3. Applicability.

  1. Except as otherwise provided in subsection (b) of this section, this chapter applies to a foreign-country judgment to the extent that the judgment:
    1. Grants or denies recovery of a sum of money; and
    2. Under the law of the foreign country where rendered, is final, conclusive, and enforceable.
  2. This chapter does not apply to a foreign-country judgment, even if the judgment grants or denies recovery of a sum of money, to the extent that the judgment is:
    1. A judgment for taxes;
    2. A fine or other penalty; or
    3. A judgment for divorce, support, or maintenance, or other judgment rendered in connection with domestic relations.
  3. A party seeking recognition of a foreign-country judgment has the burden of establishing that this chapter applies to the foreign-country judgment.

History of Section. P.L. 2021, ch. 134, § 1, effective July 3, 2021; P.L. 2021, ch. 156, § 1, effective July 3, 2021.

Official Comment.

Source: This section is based on Section 2 of the 1962 Act. Subsection (b) contains material that was included as part of the definition of “foreign judgment” in Section 1(2) of the 1962 Act. Subsection (c) is new.

  1. Like the 1962 Act, this Act sets out in subsection 3(a) two basic requirements that a foreign-country judgment must meet before it comes within the scope of this Act – the foreign-country judgment must (1) grant or deny recovery of a sum of money and (2) be final, conclusive and enforceable under the law of the foreign country where it was rendered. Subsection 3(b) then sets out three types of foreign-country judgments that are excluded from the coverage of this Act, even though they meet the criteria of subsection 3(a) – judgments for taxes, judgments constituting fines and other penalties, and judgments in domestic relations matters. These exclusions are comparable to those contained in Section 1(2) of the 1962 Act.
  2. This Act applies to a foreign-country judgment only to the extent the foreign-country judgment grants or denies recovery of a sum of money. If a foreign-country judgment both grants or denies recovery of a sum money and provides for some other form of relief, this Act would apply to the portion of the judgment that grants or denies monetary relief, but not to the portion that provides for some other form of relief. The U.S. court, however, would be left free to decide to recognize and enforce the non-monetary portion of the judgment under principles of comity or other applicable law. See Section 11.
  3. In order to come within the scope of this Act, a foreign-country judgment must be final, conclusive, and enforceable under the law of the foreign country in which it was rendered. This requirement contains three distinct, although inter-related concepts. A judgment is final when it is not subject to additional proceedings in the rendering court other than execution. A judgment is conclusive when it is given effect between the parties as a determination of their legal rights and obligations. A judgment is enforceable when the legal procedures of the state to ensure that the judgment debtor complies with the judgment are available to the judgment creditor to assist in collection of the judgment.
  4. Subsection 3(b) follows the 1962 Act by excluding three categories of foreign-country money judgments from the scope of the Act – judgments for taxes, judgments that constitute fines and penalties, and judgments in domestic relations matters. The domestic relations exclusion has been redrafted to make it clear that all judgments in domestic relations matters are excluded from the Act, not just judgments “for support” as provided in the 1962 Act. This is consistent with interpretation of the 1962 Act by the courts, which extended the “support” exclusion in the 1962 Act beyond its literal wording to exclude other money judgments in connection with domestic matters.  E.g., Wolff v. Wolff, 389 A.2d 413 (My. App. 1978) (“support” includes alimony).
  5. Under subsection 3(b), a foreign-country money judgment is not within the scope of this Act “to the extent” that it comes within one of the excluded categories. Therefore, if a foreign-country money judgment is only partially within one of the excluded categories, the non-excluded portion will be subject to this Act.
  6. Subsection 3(c) is new. The 1962 Act does not expressly allocate the burden of proof with regard to establishing whether a foreign-country judgment is within the scope of the Act. Courts applying the 1962 Act generally have held that the burden of proof is on the person seeking recognition to establish that the judgment is final, conclusive and enforceable where rendered.  E.g., Mayekawa Mfg. Co. Ltd. v. Sasaki, 888 P.2d 183, 189 (Wash. App. 1995) (burden of proof on creditor to establish judgment is final, conclusive, and enforceable where rendered);  Bridgeway Corp. v. Citibank, 45 F. Supp. 2d 276, 285 (S.D.N.Y. 1999) (party seeking recognition must establish that there is a final judgment, conclusive and enforceable where rendered);  S.C.Chimexim S.A. v. Velco Enterprises, Ltd., 36 F. Supp. 2d 206, 212 (S.D.N.Y. 1999) (Plaintiff has the burden of establishing conclusive effect). Subsection (3)(c) places the burden of proof to establish whether a foreign-country judgment is within the scope of the Act on the party seeking recognition of the foreign-country judgment with regard to both subsection (a) and subsection (b).

While the first two of these requirements – finality and conclusiveness – will apply with regard to every foreign-country money judgment, the requirement of enforceability is only relevant when the judgment is one granting recovery of a sum of money. A judgment denying a sum of money obviously is not subject to enforcement procedures, as there is no monetary award to enforce. This Act, however, covers both judgments granting and those denying recovery of a sum of money. Thus, the fact that a foreign-country judgment denying recovery of a sum of money is not enforceable does not mean that such judgments are not within the scope of the Act. Instead, the requirement that the judgment be enforceable should be read to mean that, if the foreign-country judgment grants recovery of a sum of money, it must be enforceable in the foreign country in order to be within the scope of the Act.

Like the 1962 Act, subsection 3(b) requires that the determinations as to finality, conclusiveness and enforceability be made using the law of the foreign country in which the judgment was rendered. Unless the foreign-country judgment is final, conclusive, and (to the extent it grants recovery of a sum of money) enforceable in the foreign country where it was rendered, it will not be within the scope of this Act.

Recognition and enforcement of domestic relations judgments traditionally has been treated differently from recognition and enforcement of other judgments. The considerations with regard to those judgments, particularly with regard to jurisdiction and finality, differ from those with regard to other money judgments. Further, national laws with regard to domestic relations vary widely, and recognition and enforcement of such judgments thus is more appropriately handled through comity than through use of this uniform Act. Finally, other statutes, such as the Uniform Interstate Family Support Act and the federal International Child Support Enforcement Act, 42 U.S.C. § 659a (1996), address various aspects of the recognition and enforcement of domestic relations awards. Under Section 11 of this Act, courts are free to recognize money judgments in domestic relations matters under principles of comity or otherwise, and U.S. courts routinely enforce money judgments in domestic relations matters under comity principles.

Foreign-country judgments for taxes and judgments that constitute fines or penalties traditionally have not been recognized and enforced in U.S. courts. See, e.g. , Restatement Third of the Foreign Relations Law of the United States § 483 (1986). Both the “revenue rule,” under which the courts of one country will not enforce the revenue laws of another country, and the prohibition on enforcement of penal judgments seem to be grounded in the idea that one country does not enforce the public laws of another. See id . Reporters’ Note 2. The exclusion of tax judgments and judgments constituting fines or penalties from the scope of the Act reflects this tradition. Under Section 11, however, courts remain free to consider whether such judgments should be recognized and enforced under comity or other principles.

A judgment for taxes is a judgment in favor of a foreign country or one of its subdivisions based on a claim for an assessment of a tax. Thus, a judgment awarding a plaintiff restitution of the purchase price paid for an item would not be considered in any part a judgment for taxes, even though one element of the recovery was the sales tax paid by the plaintiff at the time of purchase. Such a judgment would not be one designed to enforce the revenue laws of the foreign country, but rather one designed to compensate the plaintiff. Courts generally hold that the test for whether a judgment is a fine or penalty is determined by whether its purpose is remedial in nature, with its benefits accruing to private individuals, or it is penal in nature, punishing an offense against public justice. E.g. , Chase Manhattan Bank, N.A. v. Hoffman, 665 F.Supp 73 (D. Mass. 1987) (finding that Belgium judgment was not penal even though the proceeding forming the basis of the suit was primarily criminal where Belgium court considered damage petition a civil remedy, the judgment did not constitute punishment for an offense against public justice of Belgium, and benefit of the judgment accrued to private judgment creditor, not Belgium). Thus, a judgment that awards compensation or restitution for the benefit of private individuals should not automatically be considered penal in nature and therefore outside the scope of the Act simply because the action is brought on behalf of the private individuals by a government entity. Cf. U.S.-Australia Free Trade Agreement, art.14.7.2, U.S.-Austl., May 18, 2004 (providing that when government agency obtains a civil monetary judgment for purpose of providing restitution to consumers, investors, or customers who suffered economic harm due to fraud, judgment generally should not be denied recognition and enforcement on ground that it is penal or revenue in nature, or based on other foreign public law).

9-34-4. Standards for recognition of foreign-country judgment.

  1. Except as otherwise provided in subsections (b) and (c) of this section, a court of this state shall recognize a foreign-country judgment to which this chapter applies.
  2. A court of this state may not recognize a foreign-country judgment if:
    1. The judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law;
    2. The foreign court did not have personal jurisdiction over the defendant; or
    3. The foreign court did not have jurisdiction over the subject matter.
  3. A court of this state need not recognize a foreign-country judgment if:
    1. The defendant in the proceeding in the foreign court did not receive notice of the proceeding in sufficient time to enable the defendant to defend;
    2. The judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case;
    3. The judgment or the cause of action on which the judgment is based is repugnant to the public policy of this state or of the United States;
    4. The judgment conflicts with another final and conclusive judgment;
    5. The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by proceedings in that foreign court;
    6. In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action;
    7. The judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment; or
    8. The specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.
  4. A party resisting recognition of a foreign-country judgment has the burden of establishing that a ground for nonrecognition stated in subsection (b) or (c) of this section exists.

History of Section. P.L. 2021, ch. 134, § 1, effective July 3, 2021; P.L. 2021, ch. 156, § 1, effective July 3, 2021.

Official Comment.

Source: This section is based on Section 4 of the 1962 Act.

  1. This Section provides the standards for recognition of a foreign-country money judgment. Section 7 sets out the effect of recognition of a foreign-country money judgment under this Act.
  2. Recognition of a judgment means that the forum court accepts the determination of legal rights and obligations made by the rendering court in the foreign country.  See, e.g. Restatement (Second) of Conflicts of Laws, Ch. 5, Topic 3, Introductory Note (recognition of foreign judgment occurs to the extent the forum court gives the judgment “the same effect with respect to the parties, the subject matter of the action and the issues involved that it has in the state where it was rendered.”) Recognition of a foreign-country judgment must be distinguished from enforcement of that judgment. Enforcement of the foreign-country judgment involves the application of the legal procedures of the state to ensure that the judgment debtor obeys the foreign-country judgment. Recognition of a foreign-country money judgment often is associated with enforcement of the judgment, as the judgment creditor usually seeks recognition of the foreign-country judgment primarily for the purpose of invoking the enforcement procedures of the forum state to assist the judgment creditor’s collection of the judgment from the judgment debtor. Because the forum court cannot enforce the foreign-country judgment until it has determined that the judgment will be given effect, recognition is a prerequisite to enforcement of the foreign-country judgment. Recognition, however, also has significance outside the enforcement context because a foreign-country judgment also must be recognized before it can be given preclusive effect under res judicata and collateral estoppel principles. The issue of whether a foreign-country judgment will be recognized is distinct from both the issue of whether the judgment will be enforced, and the issue of the extent to which it will be given preclusive effect.
  3. Subsection 4(a) places an affirmative duty on the forum court to recognize a foreign-country money judgment unless one of the grounds for nonrecognition stated in subsection (b) or (c) applies. Subsection (b) states three mandatory grounds for denying recognition to a foreign-country money judgment. If the forum court finds that one of the grounds listed in subsection (b) exists, then it must deny recognition to the foreign-country money judgment. Subsection (c) states eight nonmandatory grounds for denying recognition. The forum court has discretion to decide whether or not to refuse recognition based on one of these grounds. Subsection (d) places the burden of proof on the party resisting recognition of the foreign-country judgment to establish that one of the grounds for nonrecognition exists.
  4. The mandatory grounds for nonrecognition stated in subsection (b) are identical to the mandatory grounds stated in Section 4 of the 1962 Act. The discretionary grounds stated in subsection 4(c)(1) through (6) are based on subsection 4(b)(1) through (6) of the 1962 Act. The discretionary grounds stated in subsection 4(c)(7) and (8) are new.
  5. Under subsection (b)(1), the forum court must deny recognition to the foreign-country money judgment if that judgment was “rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.” The standard for this ground for nonrecognition “has been stated authoritatively by the  Supreme Court of the United States in  Hilton v. Guyot, 159 U.S.113, 205 (1895). As indicated in that decision, a mere difference in the procedural system is not a sufficient basis for nonrecognition. A case of serious injustice must be involved.” Cmt § 4, Uniform Foreign Money-Judgment Recognition Act (1962). The focus of inquiry is not whether the procedure in the rendering country is similar to U.S. procedure, but rather on the basic fairness of the foreign-country procedure.  Kam-Tech Systems, Ltd. V. Yardeni, 74 A.2d 644, 649 (N.J. App. 2001) (interpreting the comparable provision in the 1962 Act);  accord,  Society of Lloyd’s v. Ashenden, 233 F.3d 473 (7th Cir. 2000) (procedures need not meet all the intricacies of the complex concept of due process that has emerged from U.S. case law, but rather must be fair in the broader international sense) (interpreting comparable provision in the 1962 Act). Procedural differences, such as absence of jury trial or different evidentiary rules are not sufficient to justify denying recognition under subsection (b)(1), so long as the essential elements of impartial administration and basic procedural fairness have been provided in the foreign proceeding. As the U.S. Supreme Court stated in  Hilton:
  6. Under section 4(b)(2), the forum court must deny recognition to the foreign-country judgment if the foreign court did not have personal jurisdiction over the defendant. Section 5(a) lists six bases for personal jurisdiction that are adequate as a matter of law to establish that the foreign court had personal jurisdiction. Section 5(b) makes clear that other grounds for personal jurisdiction may be found sufficient.
  7. Subsection 4(c)(2) limits the type of fraud that will serve as a ground for denying recognition to extrinsic fraud. This provision is consistent with the interpretation of the comparable provision in subsection 4(b)(2) of the 1962 Act by the courts, which have found that only extrinsic fraud — conduct of the prevailing party that deprived the losing party of an adequate opportunity to present its case — is sufficient under the 1962 Act. Examples of extrinsic fraud would be when the plaintiff deliberately had the initiating process served on the defendant at the wrong address, deliberately gave the defendant wrong information as to the time and place of the hearing, or obtained a default judgment against the defendant based on a forged confession of judgment. When this type of fraudulent action by the plaintiff deprives the defendant of an adequate opportunity to present its case, then it provides grounds for denying recognition of the foreign-country judgment. Extrinsic fraud should be distinguished from intrinsic fraud, such as false testimony of a witness or admission of a forged document into evidence during the foreign proceeding. Intrinsic fraud does not provide a basis for denying recognition under subsection 4(c)(2), as the assertion that intrinsic fraud has occurred should be raised and dealt with in the rendering court.
  8. The public policy exception in subsection 4(c)(3) is based on the public policy exception in subsection 4(b)(3) of the 1962 Act, with one difference. The public policy exception in the 1962 Act states that the relevant inquiry is whether “the [cause of action] [claim for relief] on which the judgment is based” is repugnant to public policy. Based on this “cause of action” language, some courts interpreting the 1962 Act have refused to find that a public policy challenge based on something other than repugnancy of the foreign cause of action comes within this exception.  E.g., Southwest Livestock & Trucking Co., Inc. v. Ramon, 169 F.3d 317 (5th Cir. 1999) (refusing to deny recognition to Mexican judgment on promissory note with interest rate of 48% because cause of action to collect on promissory note does not violate public policy);  Guinness PLC v. Ward, 955 F.2d 875 (4th Cir. 1992) (challenge to recognition based on post-judgment settlement could not be asserted under public policy exception);  The Society of Lloyd’s v. Turner, 303 F.3d 325 (5th Cir. 2002) (rejecting argument legal standards applied to establish elements of breach of contract violated public policy because cause of action for breach of contract itself is not contrary to state public policy);  cf.Bachchan v. India Abroad Publications, Inc., 585 N.Y.S.2d 661 (N.Y. Sup. Ct. 1992) (judgment creditor argued British libel judgment should be recognized despite argument it violated First Amendment because New York recognizes a cause of action for libel). Subsection 4(c)(3) rejects this narrow focus by providing that the forum court may deny recognition if either the cause of action or the judgment itself violates public policy.  Cf.Restatement (Third) of the Foreign Relations Law of the United States, § 482(2)(d) (1986) (containing a similarly-worded public policy exception to recognition).
  9. Subsection 4(c)(5) allows the forum court to refuse recognition of a foreign-country judgment when the parties had a valid agreement, such as a valid forum selection clause or agreement to arbitrate, providing that the relevant dispute would be resolved in a forum other than the forum issuing the foreign-country judgment. Under this provision, the forum court must find both the existence of a valid agreement and that the agreement covered the subject matter involved in the foreign litigation resulting in the foreign-country judgment.
  10. Subsection 4(c)(6) authorizes the forum court to refuse recognition of a foreign-country judgment that was rendered in the foreign country solely on the basis of personal service when the forum court believes the original action should have been dismissed by the court in the foreign country on grounds of forum non conveniens.
  11. Subsection 4(c)(7) is new. Under this subsection, the forum court may deny recognition to a foreign-country judgment if there are circumstances that raise substantial doubt about the integrity of the rendering court with respect to that judgment. It requires a showing of corruption in the particular case that had an impact on the judgment that was rendered. This provision may be contrasted with subsection 4(b)(1), which requires that the forum court refuse recognition to the foreign-country judgment if it was rendered under a judicial system that does not provide impartial tribunals. Like the comparable provision in subsection 4(a)(1) of the 1962 Act, subsection 4(b)(1) focuses on the judicial system of the foreign country as a whole, rather than on whether the particular judicial proceeding leading to the foreign-country judgment was impartial and fair.  See, e.g.,  The Society of Lloyd’s v. Turner, 303 F.3d 325, 330 (5th Cir. 2002) (interpreting the 1962 Act); CIBC Mellon Trust Co. v. Mora Hotel Corp,.  N.V., 743 N.Y.S.2d 408, 415 (N.Y. App. 2002) (interpreting the 1962 Act);  Society of Lloyd’s v. Ashenden, 233 F.3d 473, 477 (7th Cir. 2000) (interpreting the 1962 Act). On the other hand, subsection 4(c)(7) allows the court to deny recognition to the foreign-country judgment if it finds a lack of impartiality and fairness of the tribunal in the individual proceeding leading to the foreign-country judgment. Thus, the difference is that between showing, for example, that corruption and bribery is so prevalent throughout the judicial system of the foreign country as to make that entire judicial system one that does not provide impartial tribunals versus showing that bribery of the judge in the proceeding that resulted in the particular foreign-country judgment under consideration had a sufficient impact on the ultimate judgment as to call it into question.
  12. Subsection 4(c)(8) also is new. It allows the forum court to deny recognition to the foreign-country judgment if the court finds that the specific proceeding in the foreign court was not compatible with the requirements of fundamental fairness. Like subsection 4(c)(7), it can be contrasted with subsection 4(b)(1), which requires the forum court to deny recognition to the foreign-country judgment if the forum court finds that the entire judicial system in the foreign country where the foreign-country judgment was rendered does not provide procedures compatible with the requirements of fundamental fairness. While the focus of subsection 4(b)(1) is on the foreign country’s judicial system as a whole, the focus of subsection 4(c)(8) is on the particular proceeding that resulted in the specific foreign-country judgment under consideration. Thus, the difference is that between showing, for example, that there has been such a breakdown of law and order in the particular foreign country that judgments are rendered on the basis of political decisions rather than the rule of law throughout the judicial system versus a showing that for political reasons the particular party against whom the foreign-country judgment was entered was denied fundamental fairness in the particular proceedings leading to the foreign-country judgment.
  13. Under subsection 4(d), the party opposing recognition of the foreign-country judgment has the burden of establishing that one of the grounds for nonrecognition set out in subsection 4(b) or (c) applies. The 1962 Act was silent as to who had the burden of proof to establish a ground for nonrecognition and courts applying the 1962 Act took different positions on the issue.  CompareBridgeway Corp. v. Citibank, 45 F. Supp. 2d 276, 285 (S.D.N.Y. 1999) (plaintiff has burden to show no mandatory basis under 4(a) for nonrecognition exists; defendant has burden regarding discretionary bases)  withThe Courage Co. LLC v. The ChemShare Corp., 93 S.W.3d 323, 331 (Tex. App. 2002) (party seeking to avoid recognition has burden to prove ground for nonrecognition). Because the grounds for nonrecognition in Section 4 are in the nature of defenses to recognition, the burden of proof is most appropriately allocated to the party opposing recognition of the foreign-country judgment.

Where there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect then a foreign-country judgment should be recognized. Hilton , 159 U.S. at 202.

Although subsection 4(c)(3) of this Act rejects the narrow focus on the cause of action under the 1962 Act, it retains the stringent test for finding a public policy violation applied by courts interpreting the 1962 Act. Under that test, a difference in law, even a marked one, is not sufficient to raise a public policy issue. Nor is it relevant that the foreign law allows a recovery that the forum state would not allow. Public policy is violated only if recognition or enforcement of the foreign-country judgment would tend clearly to injure the public health, the public morals, or the public confidence in the administration of law, or would undermine “that sense of security for individual rights, whether of personal liberty or of private property, which any citizen ought to feel.” Hunt v. BP Exploration Co. (Libya) Ltd., 492 F. Supp. 885, 901 (N.D. Tex. 1980).

The language “or of the United States” in subsection 4(c)(3), which does not appear in the 1962 Act provision, makes it clear that the relevant public policy is that of both the State in which recognition is sought and that of the United States. This is the position taken by the vast majority of cases interpreting the 1962 public policy provision. E.g., Bachchan v. India Abroad Publications, Inc., 585 N.Y.S.2d 661 (Sup.Ct. N.Y. 1992) (British libel judgment denied recognition because it violates First Amendment).

Subsections 4(c)(7) and (8) both are discretionary grounds for denying recognition, while subsection 4(b)(1) is mandatory. Obviously, if the entire judicial system in the foreign country fails to satisfy the requirements of impartiality and fundamental fairness, a judgment rendered in that foreign country would be so compromised that the forum court should refuse to recognize it as a matter of course. On the other hand, if the problem is evidence of a lack of integrity or fundamental fairness with regard to the particular proceeding leading to the foreign-country judgment, then there may or may not be other factors in the particular case that would cause the forum court to decide to recognize the foreign-country judgment. For example, a forum court might decide not to exercise its discretion to deny recognition despite evidence of corruption or procedural unfairness in a particular case because the party resisting recognition failed to raise the issue on appeal from the foreign-country judgment in the foreign country, and the evidence establishes that, if the party had done so, appeal would have been an adequate mechanism for correcting the transgressions of the lower court.

9-34-5. Personal jurisdiction.

  1. A foreign-country judgment may not be refused recognition for lack of personal jurisdiction if:
    1. The defendant was served with process personally in the foreign country;
    2. The defendant voluntarily appeared in the proceeding, other than for the purpose of protecting property seized or threatened with seizure in the proceeding or of contesting the jurisdiction of the court over the defendant;
    3. The defendant, before the commencement of the proceeding, had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved;
    4. The defendant was domiciled in the foreign country when the proceeding was instituted or was a corporation or other form of business organization that had its principal place of business in, or was organized under the laws of, the foreign country;
    5. The defendant had a business office in the foreign country and the proceeding in the foreign court involved a cause of action arising out of business done by the defendant through that office in the foreign country; or
    6. The defendant operated a motor vehicle or airplane in the foreign country and the proceeding involved a cause of action arising out of that operation.
  2. The list of bases for personal jurisdiction in subsection (a) of this section is not exclusive. The courts of this state may recognize bases of personal jurisdiction other than those listed in subsection (a) of this section as sufficient to support a foreign-country judgment.

History of Section. P.L. 2021, ch. 134, § 1, effective July 3, 2021; P.L. 2021, ch. 156, § 1, effective July 3, 2021.

Official Comment.

Source: This provision is based on Section 5 of the 1962 Act. Its substance is the same as that of Section 5 of the 1962 Act, except as noted in Comment 2 below with regard to subsection 5(a)(4).

  1. Under section 4(b)(2), the forum court must deny recognition to the foreign-country judgment if the foreign court did not have personal jurisdiction over the defendant. Section 5(a) lists six bases for personal jurisdiction that are adequate as a matter of law to establish that the foreign court had personal jurisdiction. Section 5(b) makes it clear that these bases of personal jurisdiction are not exclusive. The forum court may find that the foreign court had personal jurisdiction over the defendant on some other basis.
  2. Subsection 5(a)(4) of the 1962 Act provides that the foreign court had personal jurisdiction over the defendant if the defendant was “a body corporate” that “had its principal place of business, was incorporated, or had otherwise acquired corporate status, in the foreign state.” Subsection 5(a)(4) of this Act extends that concept to forms of business organization other than corporations.
  3. Subsection 5(a)(3) provides that the foreign court has personal jurisdiction over the defendant if the defendant agreed before commencement of the proceeding leading to the foreign-country judgment to submit to the jurisdiction of the foreign court with regard to the subject matter involved. Under this provision, the forum court must find both the existence of a valid agreement to submit to the foreign court’s jurisdiction and that the agreement covered the subject matter involved in the foreign litigation resulting in the foreign-country judgment.

9-34-6. Procedure for recognition of foreign-country judgment.

  1. If recognition of a foreign-country judgment is sought as an original matter, the issue of recognition shall be raised by filing an action seeking recognition of the foreign-country judgment.
  2. If recognition of a foreign-country judgment is sought in a pending action, the issue of recognition may be raised by counterclaim, cross-claim, or affirmative defense.

History of Section. P.L. 2021, ch. 134, § 1, effective July 3, 2021; P.L. 2021, ch. 156, § 1, effective July 3, 2021.

Official Comment.

Source: This section is new.

  1. Unlike the 1962 Act, which was silent as to the proper procedure for seeking recognition of a foreign-country judgment, Section 6 of this Act expressly sets out the ways in which the issue of recognition may be raised. Under section 6, the issue of recognition always must be raised in a court proceeding. Thus, section 6 rejects decisions under the 1962 Act holding that the registration procedure found in the Uniform Enforcement of Foreign Judgments Act could be utilized with regard to recognition of a foreign-country judgment.  E.g. Society of Lloyd’s v. Ashenden, 233 F.3d 473 (7th Cir. 2000). The Enforcement Act deals solely with the  enforcement of sister-state judgments and other judgments entitled to full faith and credit, not with the  recognition of foreign-country judgments.
  2. This Section contemplates that the issue of recognition may be raised either as an original matter or in the context of a pending proceeding. Subsection 6(a) provides that in order to raise the issue of recognition of a foreign-country judgment as an initial matter, the party seeking recognition must file an action for recognition of the foreign-country judgment. Subsection 6(b) provides that when the recognition issue is raised in a pending proceeding, it may be raised by counterclaim, cross-claim or affirmative defense, depending on the context in which it is raised. These rules are consistent with the way the issue of recognition most often was raised in most states under the 1962 Act.
  3. An action seeking recognition of a foreign-country judgment under this Section is an action on the foreign-country judgment itself, not an action on the underlying cause of action that gave rise to that judgment. The parties to an action under Section 6 may not relitigate the merits of the underlying dispute that gave rise to the foreign-country judgment.
  4. While this Section sets out the ways in which the issue of recognition of a foreign-country judgment may be raised, it is not intended to create any new procedure not currently existing in the state or to otherwise effect existing state procedural requirements. The parties to an action in which recognition of a foreign-country judgment is sought under Section 6 must comply with all state procedural rules with regard to that type of action. Nor does this Act address the question of what constitutes a sufficient basis for jurisdiction to adjudicate with regard to an action under Section 6. Courts have split over the issue of whether the presence of assets of the debtor in a state is a sufficient basis for jurisdiction in light of footnote 36 of the U.S. Supreme Court decision in  Shaffer v. Heitner, 433 U.S. 186, 210 n.36 (1977). This Act takes no position on that issue.
  5. In states that have adopted the Uniform Foreign-Money Claims Act, that Act will apply to the determination of the amount of a money judgment recognized under this Act.

More broadly, section 6 rejects the use of any registration procedure in the context of the foreign-country judgments covered by this Act. A registration procedure represents a balance between the interest of the judgment creditor in obtaining quick and efficient recognition and enforcement of a judgment when the judgment debtor has already been provided with an opportunity to litigate the underlying issues, and the interest of the judgment debtor in being provided an adequate opportunity to raise and litigate issues regarding whether the foreign-country judgment should be recognized. In the context of sister-state judgments, this balance favors use of a truncated procedure such as that found in the Enforcement Act. Recognition of sister-state judgments normally is mandated by the Full Faith and Credit Clause. Courts recognize only a very limited number of grounds for denying full faith and credit to a sister-state judgment – that the rendering court lacked jurisdiction, that the judgment was procured by fraud, that the judgment has been satisfied, or that the limitations period has expired. Thus, the judgment debtor with regard to a sister-state judgment normally does not have any grounds for opposing recognition and enforcement of the judgment. The extremely limited grounds for denying full faith and credit to a sister-state judgment reflect the fact such judgments will have been rendered by a court that is subject to the same due process limitations and the same overlap of federal statutory and constitutional law as the forum state’s courts, and, to a large extent, the same body of court precedent and socio-economic ideas as those shaping the law of the forum state. Therefore, there is a strong presumption of fairness and competence attached to a sister-state judgment that justifies use of a registration procedure.

The balance between the benefits and costs of a registration procedure is significantly different, however, in the context of recognition and enforcement of foreign-country judgments. Unlike the limited grounds for denying full faith and credit to a sister-state judgment, this Act provides a number of grounds upon which recognition of a foreign-country judgment may be denied. Determination of whether these grounds apply requires the forum court to look behind the foreign-country judgment to evaluate the law and the judicial system under which the foreign-country judgment was rendered. The existence of these grounds for nonrecognition reflects the fact there is less expectation that foreign-country courts will follow procedures comporting with U.S. notions of fundamental fairness and jurisdiction or that those courts will apply laws viewed as substantively tolerable by U.S. standards than there is with regard to sister-state courts. In some situations, there also may be suspicions of corruption or fraud in the foreign-country proceedings. These differences between sister-state judgments and foreign-country judgments provide a justification for requiring judicial involvement in the decision whether to recognize a foreign-country judgment in all cases in which that issue is raised. Although the threshold for establishing that a foreign-country judgment is not entitled to recognition under Section 4 is high, there is a sufficiently greater likelihood that significant recognition issues will be raised so as to require a judicial proceeding.

9-34-7. Effect of recognition of foreign-country judgment.

If the court in a proceeding under § 9-34-6 finds that the foreign-country judgment is entitled to recognition under this chapter then, to the extent that the foreign-country judgment grants or denies recovery of a sum of money, the foreign-country judgment is:

  1. Conclusive between the parties to the same extent as the judgment of a sister state entitled to full faith and credit in this state would be conclusive; and
  2. Enforceable in the same manner and to the same extent as a judgment rendered in this state.

History of Section. P.L. 2021, ch. 134, § 1, effective July 3, 2021; P.L. 2021, ch. 156, § 1, effective July 3, 2021.

Official Comment.

Source: The substance of subsection 7(1) is based on Section 3 of the 1962 Act. Subsection 7(2) is new.

  1. Section 5 of this Act sets out the standards for the recognition of foreign-country judgments within the scope of this Act, and places an affirmative duty on the forum court to recognize any foreign-country judgment that meets those standards. Section 6 of this Act sets out the procedures by which the issue of recognition may be raised. This Section sets out the consequences of the decision by the forum court that the foreign-country judgment is entitled to recognition.
  2. Under subsection 7(1), the first consequence of recognition of a foreign-country judgment is that it is treated as conclusive between the parties in the forum state. Section 7(1) does not attempt to establish directly the extent of that conclusiveness. Instead, it provides that the foreign-country judgment is treated as conclusive to the same extent that a judgment of a sister state that had been determined to be entitled to full faith and credit would be conclusive. This means that the foreign-country judgment generally will be given the same effect in the forum state that it has in the foreign country where it was rendered. Subsection 7(1), however, sets out the minimum effect that must be given to the foreign-country judgment once recognized. The forum court remains free to give the foreign-country judgment a greater preclusive effect in the forum state than the judgment would have in the foreign country where it was rendered.  Cf.Restatement (Third) of the Foreign Relations Law of the United States, § 481 cmt  c (1986).
  3. Under subsection 7(2), the second consequence of recognition of a foreign-country judgment is that, to the extent it grants a sum of money, it is enforceable in the forum state in accordance with the procedures for enforcement in the forum state and to the same extent that a judgment of the forum state would be enforceable.  Cf.Restatement (Third) of the Foreign Relations Law of the United States § 481 (1986) (judgment entitled to recognition is enforceable in accordance with the procedure for enforcement of judgments applicable where enforcement is sought). Thus, under subsection 7(2), once recognized, the foreign-country judgment has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying a judgment of a comparable court in the forum state, and can be enforced or satisfied in the same manner as such a judgment of the forum state.

9-34-8. Stay of proceedings pending appeal of foreign-country judgment.

If a party establishes that an appeal from a foreign-country judgment is pending or will be taken, the court may stay any proceedings with regard to the foreign-country judgment until the appeal is concluded, the time for appeal expires, or the appellant has had sufficient time to prosecute the appeal and has failed to do so.

History of Section. P.L. 2021, ch. 134, § 1, effective July 3, 2021; P.L. 2021, ch. 156, § 1, effective July 3, 2021.

Official Comment.

Source: This section is the same substantively as section 6 of the 1962 Act, except that it adds as an additional measure for the duration of the stay “the time for appeal expires.”

  1. Under Section 3 of this Act, a foreign-country judgment is not within the scope of this Act unless it is conclusive and enforceable where rendered. Thus, if the effect of appeal under the law of the foreign country in which the judgment was rendered is to prevent it from being conclusive or enforceable between the parties, the existence of a pending appeal in the foreign country would prevent the application of this Act. Section 8 addresses a different situation. It deals with the situation in which either (1) the party seeking a stay has demonstrated that it intends to file an appeal in the foreign country, although the appeal has not yet been filed or (2) an appeal has been filed in the foreign country, but under the law of the foreign country filing of an appeal does not affect the conclusiveness or enforceability of the judgment. Section 8 allows the forum court in those situations to determine in its discretion that a stay of proceedings is appropriate.

9-34-9. Statute of limitations.

An action to recognize a foreign-country judgment must be commenced within the earlier of the time during which the foreign-country judgment is effective in the foreign country or twenty (20) years from the date that the foreign-country judgment became effective in the foreign country.

History of Section. P.L. 2021, ch. 134, § 1, effective July 3, 2021; P.L. 2021, ch. 156, § 1, effective July 3, 2021.

Official Comment.

Source: This Section is new. The 1962 Act did not contain a statute of limitations. Some courts applying the 1962 Act have used the state’s general statute of limitations, e.g. , Vrozos v. Sarantopoulos, 552 N.E.2d 1053 (Ill. App. 1990) (as Recognition Act contains no statute of limitations, general five-year statute of limitations applies), while others have used the statute of limitations applicable with regard to enforcement of a domestic judgment, e.g. , La Societe Anonyme Goro v. Conveyor Accessories, Inc., 677 N.E. 2d 30 (Ill. App. 1997).

  1. Under Section 3 of this Act, this Act only applies to foreign-country judgments that are conclusive, and if the judgment grants recovery of a sum of money, enforceable where rendered. Thus, if the period of effectiveness of the foreign-country judgment has expired in the foreign country where the judgment was rendered, the foreign-country judgment would not be subject to this Act. This means that the period of time during which a foreign-country judgment may be recognized under this Act normally is measured by the period of time during which that judgment is effective (that is, conclusive and, if applicable, enforceable) in the foreign country that rendered the judgment. If, however, the foreign-country judgment remains effective for more than fifteen years after the date on which it became effective in the foreign country, Section 9 places an additional time limit on recognition of a foreign-country judgment. It provides that, if the foreign-country judgment remains effective between the parties for more than fifteen years, then an action to recognize the foreign-country judgment under this Act must be commenced within that fifteen year period.
  2. Section 9 does not address the issue of whether a foreign-country judgment that can no longer be the basis of a recognition action under this Act because of the application of the fifteen-year limitations period in Section 9 may be used for other purposes. For example, a common rule with regard to judgments barred by a statute of limitations is that they still may be used defensively for purposes of offset and for their preclusive effect. The extent to which a foreign-country judgment with regard to which a recognition action is barred by Section 9 may be used for these or other purposes is left to the other law of the forum state.

9-34-10. Uniformity of interpretation.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

History of Section. P.L. 2021, ch. 134, § 1, effective July 3, 2021; P.L. 2021, ch. 156, § 1, effective July 3, 2021.

Official Comment.

Source: This Section is substantively the same as Section 8 of the 1962 Act. The section has been rewritten to reflect current NCCUSL practice.

9-34-11. Savings clause.

This chapter does not prevent the recognition under principles of comity or otherwise of a foreign-country judgment not within the scope of this chapter.

History of Section. P.L. 2021, ch. 134, § 1, effective July 3, 2021; P.L. 2021, ch. 156, § 1, effective July 3, 2021.

Official Comment.

Source: This section is based on Section 7 of the 1962 Act.

  1. Section 3 of this Act provides that this Act applies only to certain foreign-country judgments that grant or deny recovery of a sum of money. The purpose of this Act is to establish the minimum standards for recognition of those judgments. Section 11 makes clear that no negative implication should be read from the fact that this Act does not provide for recognition of other foreign-country judgments. Rather, this Act simply does not address the issue of whether foreign-country judgments not within its scope under Section 3 should be recognized. Courts are free to recognize those foreign-country judgments not within the scope of this Act under common law principles of comity or other applicable law.

9-34-12. Transitional provision.

This chapter applies to all actions commenced on or after the effective date of this chapter [July 3, 2021] in which the issue of recognition of a foreign-country judgment is raised.

History of Section. P.L. 2021, ch. 134, § 1, effective July 3, 2021; P.L. 2021, ch. 156, § 1, effective July 3, 2021.

Official Comment.

Source: Subsection 12(a) is the same as Section 11 of the 1962 Act. Subsection 12(b) is new.

  1. Subsection 12(b) provides that this Act will apply to all actions in which the issue of recognition of a foreign-country judgment is raised that are commenced on or after the effective date of this Act. Thus, the application of this Act is measured not from the time the original action leading to the foreign-country judgment was commenced in the foreign country, but rather from the time the action in which the issue of recognition is raised is commenced in the forum court. Subsection 12(b) does not distinguish between whether the purpose of the action commenced in the forum court was to seek recognition as an original matter under Subsection 6(a) or was an action that was already pending when the issue of recognition was raised under Subsection 6(b).

9-34-13. Official comments.

It is the intention of the general assembly that the official comments to the Uniform Foreign-Country Money Judgments Recognition Act as approved and recommended for enactment in all the states by the National Conference of Commissioners on Uniform State Laws in 2005 represent the express legislative intent of the general assembly and shall be used as a guide for interpretation of this chapter.

History of Section. P.L. 2021, ch. 134, § 1, effective July 3, 2021; P.L. 2021, ch. 156, § 1, effective July 3, 2021.

Chapter 35 Uniform Registration of Canadian Money Judgments Act

9-35-1. Short title.

This chapter shall be known and may be cited as the “Uniform Registration of Canadian Money Judgments Act”.

History of Section. P.L. 2021, ch. 134, § 2, effective July 3, 2021; P.L. 2021, ch. 156, § 2, effective July 3, 2021.

Compiler's Notes.

P.L. 2021, ch. 134, § 2, and P.L. 2021, ch. 156, § 2 enacted identical versions of this chapter.

The Official Comments in this chapter are copyrighted by the National Conference of Commissioners on Uniform State Laws, and are reproduced by permission.

Applicability.

P.L. 2021, ch. 134, § 3, provides: “This act shall take effect upon passage [July 3, 2021] and shall apply to foreign and Canadian judgments obtained on or after the effective date of this act.”

P.L. 2021, ch. 156, § 3, provides: “This act shall take effect upon passage [July 3, 2021] and shall apply to foreign and Canadian judgments obtained on or after the effective date of this act.”

Official Comment.

Legislative Note: Because this act relies on the rules of the Uniform Foreign-Country Money Judgments Recognition Act, this act should be enacted only in a state that has enacted that Act or is enacting that Act concurrently with enactment of this act.

Comment.

This Act establishes a registration procedure for recognition and enforcement of Canadian money judgments as an alternative to the procedure found in Section 6 of the Uniform Foreign-Country Money Judgments Recognition Act (UFCMJRA), which requires that recognition be sought through a judicial proceeding. The Act is drafted to supplement and integrate into the UFCMJRA and relies on the rules of the UFCMJRA with regard to recognition of foreign-country money judgments, other than the UFCMJRA requirement that an action be filed. The Act also establishes a registration procedure that is similar, to the extent practicable, to the Canadian registration procedure regarding foreign-country judgments contained in the Canadian Uniform Enforcement of Foreign Judgments Act (UEFJA).

9-35-2. Definitions.

In this chapter:

  1. “Canada” means the sovereign nation of Canada and its provinces and territories. “Canadian” has a corresponding meaning.
  2. “Canadian judgment” means a judgment of a court of Canada, other than a judgment that recognizes the judgment of another foreign country.

History of Section. P.L. 2021, ch. 134, § 2, effective July 3, 2021; P.L. 2021, ch. 156, § 2, effective July 3, 2021.

Official Comment.

  1. These definitions are analogs to the definitions of “Foreign country” and “Foreign-country judgment” in the UFCMJRA.
  2. The Canadian UEFJA does not apply to foreign judgments “that recognize the judgment of another foreign State.” Canadian UEFJA § 3(d). Because this Act is drafted to harmonize with the Canadian UEFJA, a judgment that recognizes the judgment of another foreign country is excluded from the definition of “Canadian judgment” in paragraph (2).

9-35-3. Applicability.

  1. This chapter applies to a Canadian judgment to the extent the judgment is within the scope of § 9-34-3 , if recognition of the judgment is sought to enforce the judgment.
  2. A Canadian judgment that grants both recovery of a sum of money and other relief may be registered under this chapter, but only to the extent of the grant of recovery of a sum of money.
  3. A Canadian judgment regarding subject matter both within and not within the scope of this chapter may be registered under this chapter, but only to the extent the judgment is with regard to subject matter within the scope of this chapter.

History of Section. P.L. 2021, ch. 134, § 2, effective July 3, 2021; P.L. 2021, ch. 156, § 2, effective July 3, 2021.

Official Comment.

  1. Under subsection (a), this Act applies to a Canadian money judgment to the extent the judgment comes within the scope of the UFCMJRA. Section 3 of the UFCMJRA provides that the UFCMJRA applies to a foreign-country judgment to the extent the judgment (1) grants or denies recovery of a sum of money; and is (2) final, conclusive and enforceable under the law of the rendering jurisdiction. UFCMJRA Section 3 excludes (1) a judgment for taxes; (2) a fine or other penalty; and (3) a judgment for divorce, support, or maintenance, or other judgment in connection with domestic relations. These requirements and exclusions are incorporated into this Act.
  2. Harmonization with the Canadian UEFJA is only partial with regard to the kind of judgments that are included in the Act. The Canadian UEFJA is not limited to money judgments; it applies more broadly to a final order or judgment in a civil proceeding. The policy decision was made, however, to limit the scope of this Act to judgments that are within the scope of both the UFCMJRA and the Canadian UEFJA. Because the scope of the UFCMJRA is narrower than that of the Canadian UEFJA, the scope of this Act is limited to the scope of the UFCMJRA.
  3. The Canadian UEFJA contains exclusions for (1) recovery of taxes; (2) maintenance or support; and (3) recovery of monetary fines or penalties that are sufficiently similar to those in Section 3 of the UFCMJRA as to not affect harmonization. The Canadian UEFJA also contains three exclusions not found in the UFCMJRA – foreign judgments: (1) “arising out of bankruptcy and insolvency proceedings”; (2) “that recognize the judgment of another foreign State;” and (3) that were “rendered in proceedings commenced before the coming into force of [the Canadian UEFJA]”. There is no need to address the bankruptcy exclusion in this Act because U.S. bankruptcy law requires that the type of judgment covered by this exclusion – a foreign money judgment against a debtor in bankruptcy or its estate – be filed in the bankruptcy proceedings rather than under the UFCMJRA. The exclusion for a judgment recognizing the judgment of another foreign State is dealt with in this Act by excluding that type of judgment from the definition of “Canadian judgment” in Section 2(2). The third exclusion is addressed in Section 11 of this Act, which provides that the Act applies only to proceedings commenced on or after the effective date of the Act.
  4. In addition to limiting the type of judgments to which this Act applies to those within the scope of the UFCMJRA, Section 3(a) provides that the Act applies only “if recognition of the judgment is sought to enforce the judgment.” This latter limit, which is not found in the UFCMJRA, is intended to exclude from the Act situations in which recognition is sought solely for the purpose of obtaining the preclusive effect of the Canadian money judgment. This issue is discussed further in Comments 1 and 2 to Section 4.
  5. Subsections (b) and (c) deal with “mixed judgments” – judgments that are partially within and partially outside of the scope of the Act. The UFCMJRA deals with this issue by providing in UFCMJRA Section 3 that the UFCMJRA applies to mixed judgments “to the extent” they are within its scope. This section also uses the “to the extent” formulation in order to track the scope of the UFCMJRA. In addition, subsections (b) and (c) make it clear that a mixed judgment may be registered to the extent that it involves the type of relief and subject matter that is within the scope of the UFCMJRA and thus within the scope of this Act.
  6. A Canadian judgment could contain elements that are within the scope of this Act, and others that are not, in two ways. First, the judgment could combine a monetary award (which would be within the Act’s scope) with a non-monetary award, such as an injunction (which would not be within its scope). See UFCMJRA Section 3(a). Second, the judgment could relate to both a subject matter within the scope of the Act and one that is excluded. See UFCMJRA Section 3(b). Subsection (b) addresses the first situation, providing that a judgment that grants both monetary and non-monetary relief may be registered, but only to the extent of the grant of monetary relief. Subsection (c) addresses the second situation, providing that a judgment rendered with regard to both a subject matter within the scope of the Act and one that is outside its scope may be registered, but only to the extent the judgment relates to the subject matter within the scope of this Act.

9-35-4. Registration of Canadian judgment.

  1. A person seeking recognition of a Canadian judgment described in § 9-35-3 to enforce the judgment may register the judgment in the office of the clerk of a court in which an action for recognition of the judgment could be filed under § 9-34-6 .
  2. A registration under subsection (a) of this section must be executed by the person registering the judgment or the person’s attorney and include:
    1. A copy of the Canadian judgment authenticated in the same manner as a copy of a foreign judgment is authenticated in an action under § 9-34-6 as an accurate copy by the court that entered the judgment;
    2. The name and address of the person registering the judgment;
    3. If the person registering the judgment is not the person in whose favor the judgment was rendered, a statement describing the interest the person registering the judgment has in the judgment which entitles the person to seek its recognition and enforcement;
    4. The name and last-known address of the person against whom the judgment is being registered;
    5. If the judgment is of the type described in § 9-35-3(b) or (c), a description of the part of the judgment being registered;
    6. The amount of the judgment or part of the judgment being registered, identifying:
      1. The amount of interest accrued as of the date of registration on the judgment or part of the judgment being registered, the rate of interest, the part of the judgment to which interest applies, and the date when interest began to accrue;
      2. Costs and expenses included in the judgment or part of the judgment being registered, other than an amount awarded for attorneys’ fees; and
      3. The amount of an award of attorneys’ fees included in the judgment or part of the judgment being registered;
    7. The amount, as of the date of registration, of post-judgment costs, expenses, and attorneys’ fees claimed by the person registering the judgment or part of the judgment;
    8. The amount of the judgment or part of the judgment being registered which has been satisfied as of the date of registration;
    9. A statement that:
      1. The judgment is final, conclusive, and enforceable under the law of the Canadian jurisdiction in which it was rendered;
      2. The judgment or part of the judgment being registered is within the scope of this chapter; and
      3. If a part of the judgment is being registered, the amounts stated in the registration under subsections (b)(6), (b)(7), and (b)(8) of this section relate to the part;
    10. If the judgment is not in English, a certified translation of the judgment into English; and
    11. A registration fee of one hundred sixty dollars ($160).
  3. On receipt of a registration that includes the documents, information, and registration fee required by subsection (b) of this section, the clerk shall file the registration, assign a civil action number, and enter the Canadian judgment in the court’s docket.
  4. A registration substantially in the following form complies with the registration requirements under subsection (b) of this section if the registration includes the attachments specified in the form:

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REGISTRATION OF CANADIAN MONEY JUDGMENT Complete and file this form, together with the documents required by Part V of this form, with the Clerk of Court. When stating an amount of money, identify the currency in which the amount is stated. PART I. IDENTIFICATION OF CANADIAN JUDGMENT Canadian Court Rendering the Judgment: Case/Docket Number in Canadian Court: Name of Plaintiff(s): Name of Defendant(s): The Canadian Court entered the judgment on [date] in [city] [Province or Territory]. The judgment includes an award for the payment of money in favor of in the amount of . If only part of the Canadian judgment is subject to registration (see § 9-35-3(b) and (c)), describe the part of the judgment being registered: PART II. IDENTIFICATION OF PERSON REGISTERING JUDGMENT AND PERSON AGAINST WHOM JUDGMENT IS BEING REGISTERED Provide the following information for all persons seeking to register the judgment under this registration and all persons against whom the judgment is being registered under this registration. Name of Person(s) Registering Judgment: If a person registering the judgment is not the person in whose favor the judgment was rendered, describe the interest the person registering the judgment has in the judgment which entitles the person to seek its recognition and enforcement: Address of Person(s) Registering Judgment: Additional Contact Information for Person(s) Registering Judgment (Optional): Telephone Number: FAX Number: Email Address: Name of Attorney for Person(s) Registering Judgment, if any: Address: Telephone Number: FAX Number: Email Address: Name of Person(s) Against Whom Judgment is Being Registered: Address of Person(s) Against Whom Judgment is Being Registered: (provide the most recent address known) Additional Contact Information for Person(s) Against Whom Judgment is Being Registered (Optional) (provide most recent information known): Telephone Number: FAX Number: Email Address: PART III. CALCULATION OF AMOUNT FOR WHICH ENFORCEMENT IS SOUGHT Identify the currency or currencies in which each amount is stated. The amount of the Canadian judgment or part of the judgment being registered is: . The amount of interest accrued as of the date of registration on the part of the judgment being registered is The applicable rate of interest is The date when interest began to accrue is The part of the judgment to which the interest applies is . The Canadian court awarded costs and expenses relating to the part of the judgment being registered in the amount of (exclude any amount included in the award of costs and expenses which represents an award of attorneys’ fees). The Canadian court awarded attorneys’ fees relating to the part of the judgment being registered in the amount of . The person registering the Canadian judgment claims post-judgment costs and expenses in the amount of and post-judgment attorneys’ fees in the amount of relating to the part of the judgment being registered (include only costs, expenses, and attorney’s fees incurred before registration). The amount of the part of the judgment being registered which has been satisfied as of the date of registration is . The total amount for which enforcement of the part of the judgment being registered is sought is . PART IV. STATEMENT OF PERSON REGISTERING JUDGMENT I, state: [Person Registering Judgment or Attorney for Person Registering Judgment] 1. The Canadian judgment is final, conclusive, and enforceable under the law of the Canadian jurisdiction in which it was rendered. 2. The Canadian judgment or part of the judgment being registered is within the scope of chapter 35 of title 9 of the Rhode Island General Laws. 3. If only a part of the Canadian judgment is being registered, the amounts stated in Part III of this form relate to that part. PART V. ITEMS REQUIRED TO BE INCLUDED WITH REGISTRATION Attached are (check to signify required items are included): A copy of the Canadian judgment authenticated in the same manner a copy of a foreign judgment is authenticated in an action under as an accurate copy by the Canadian court that entered the judgment. § 9-34-6 If the Canadian judgment is not in English, a certified translation of the judgment into English. A registration fee in the amount of one hundred sixty dollars ($160). I declare that the information provided on this form is true and correct to the best of my knowledge and belief. Submitted by: Signature of [Person Registering Judgment] [Attorney for Person Registering Judgment] [specify whether signer is the person registering the judgment or that person’s attorney] Date of submission:

History of Section. P.L. 2021, ch. 134, § 2, effective July 3, 2021; P.L. 2021, ch. 156, § 2, effective July 3, 2021.

Official Comments

Legislative Note: “Clerk” is bracketed in this section. The state should insert the appropriate term in the state for the court officer.

Subsection (b)(1) provides alternative bracketed language regarding authentication of a copy of the Canadian judgment being registered. A state that has a statute or rule regarding the method of authenticating a foreign country judgment should refer to that statute or rule as indicated by the first set of brackets. Other states should opt for the second set of brackets.

Subsection (b)(11 ) provides alternative bracketed language regarding the registration fee. A state that combines fees in a centralized statute should refer to that statute as indicated by the second set of brackets. If a state establishes fees by administrative rule, the reference should be to the administrative rule. Other states should set the fee in this act by opting for the first set of brackets.

“Registration” is bracketed in subsection (c). The state should insert the appropriate term in the state for the docket in which the registration will be filed.

Part V of the registration form provides alternative bracketed language regarding the registration fee. A state that combines fees in a centralized statute should refer to that statute as indicated by the second set of brackets. If a state establishes fees by administrative rule, the reference should be to the administrative rule. A state that sets the registration fee in this act should provide the amount of the registration fee in the form by opting for the first set of brackets.

Comment.

  1. Section 3(a) states the scope of this Act in terms of both the  type of judgment (this Act applies to a judgment to the extent the judgment is a type of judgment to which the UFCMJRA applies) and in terms of the  purpose for which recognition is sought (recognition must be sought in order to enforce the judgment). Accordingly, subsection (a) provides that a person may register a Canadian judgment if recognition is sought in order to enforce the judgment – that is, if the person registering the judgment is doing so in order to use available procedures in the state to collect the amount of the judgment from the assets of a person who is obligated to pay the judgment. The registration procedure thus is not available when recognition of a Canadian judgment is sought solely to establish its preclusive effect with regard to the determination of the dispute (or issues in the dispute) by the rendering court. In most instances, the issue of recognition of a foreign judgment solely to establish its preclusive effect will be raised in the course of an already-initiated court proceeding, and, therefore, is best dealt with under the procedures of Section 6 of the UFCMJRA.
  2. The term “enforce” as used in subsection (a) includes any means provided by the law of this state by which a person may seek to collect the judgment from the assets of the person obligated on the judgment. Enforcement does not necessarily require an affirmative act on the part of the person seeking to collect. For example, in some states, a judgment creates a lien against the judgment debtor’s real estate without any action by the judgment creditor. A person registering a Canadian judgment for the purpose of obtaining this automatic lien would meet the requirement of subsection (a). Subsection (a) also does not affect any of the rules with regard to enforcement of judgments under the law of this state, including the time in which a judgment creditor may enforce a judgment. The requirement that the registration be for the purpose of enforcement does not mean that enforcement must be the sole reason for registration. Indeed, under Section 5, one of the consequences of registration is that the judgment is conclusive between the parties. It is only when recognition is sought  solely to obtain preclusive effect that registration is not available. The person against whom the judgment has been registered has the burden of establishing that the judgment was not registered for the purpose of enforcement.  See Section 7.
  3. Subsection (b)(1) is based on Canadian UEFJA Section 12(4)(a), which provides that the appropriate authentication is that of the court of origin.
  4. While the authentication under subsection (b)(1) is that of the court of origin, the method of authentication is determined by this state as the forum asked to recognize the judgment. The procedure contemplated is that required in this state for the authentication of a foreign-country judgment in connection with an action under UFCMJRA Section 6.
  5. Subsection (b)(2) requires basic information identifying the person registering the Canadian judgment – that is, the person in whose favor the judgment was rendered or a successor in interest to that person. If the person registering the judgment is not the original party in whose favor the judgment was rendered, subsection (b)(3) requires the person registering the judgment to explain why it is entitled to have the judgment recognized and enforced.
  6. Subsection (b)(4) requires basic information about the person against whom the judgment is being registered. The most up-to-date information available to the person registering the judgment is required.
  7. Subsection (b)(5) addresses the issue of mixed judgments. If the Canadian judgment is only partially within the scope of the Act, the part of the judgment within the Act may be registered, see Section 3, but the person registering the judgment must provide a description of that part.
  8. Subsection (b)(6) requires information about the amount of the judgment for which registration is sought, including the amount of accrued interest, costs and expenses and attorney’s fees. The primary purpose of this information is to allow the person against whom the judgment is registered to determine how the amount of the judgment for which registration is sought was determined and the components that make up that amount. If only part of the judgment is being registered, the person registering the judgment is required to allocate the appropriate amounts to the part being registered.
  9. Subsection (b)(7) requires information about the amount of post-judgment costs, expenses, and attorney’s fees included in the amount for which enforcement of the judgment is sought. The amounts included are “as of the date of registration,” which would include any amount up to the time of filing the registration. Unlike the amounts included under subsection (b)(6), post-judgment amounts claimed are not likely to have been approved by a court. As with regard to other amounts stated in the registration, however, the burden is on the person against whom the judgment is being registered to object to these amounts, if the person believes they are not accurate.  See Section 7(b)(2).
  10. Subsection (b)(8) requires the person registering the judgment to state the amount of the judgment that has been satisfied as of the filing of the registration. The total of the amounts stated in subsections (b)(6) and (7) less the amount stated in (b)(8) should equal the amount for which enforcement is sought. If only a part of the judgment is subject to being registered, then the amount satisfied will be the amount satisfied with regard to the part of the judgment being registered.
  11. This Act does not address the question of the conversion rule to be used with regard to the amounts subsection (b) requires to be stated. In this regard, this Act follows the UFCMJRA, which also leaves this issue to other law of the state. In contrast, compare Canadian UEFJA Section 13, which explicitly adopts the date of payment conversion rule. The date of payment rule also is the conversion rule adopted in the Uniform Foreign-Money Claims Act and the prevalent rule in many other countries. The intent of this Act is that the conversion rule applied will be the same conversion rule as would be used in an action under UFCMJRA Section 6 in this state. Depending on the conversion rule used, the amounts under subsection (b) may in some instances be stated in more than one currency.
  12. Subsection (b)(9) requires the person seeking registration to provide a statement that the judgment to be registered is of a type to which the UFCMJRA (and thus this Act) applies. Under UFCMJRA Section 3(c), the party seeking recognition has the burden to establish that the UFCMJRA applies to the foreign-country judgment.  Cf. The Hague Convention on Choice of Court Agreements of 30 June 2005, Art. 13 1. d) (requiring person seeking recognition of a judgment to produce “any documents necessary to establish that the judgment has effect or, where applicable, is enforceable in the State of origin”). The same is true under this Act.  See Section 9(a) (except for UFCMJRA Section 6, UFCMJRA rules apply to registration under this Act). If only a portion of the judgment is within the scope of the UFCMJRA (and thus subject to registration under this Act), subsection (b)(9)(C) requires the person registering the judgment to affirm that the amounts stated in the registration pursuant to subsection (b)(6), (7) and (8) relate to the part being registered.
  13. Subsection (b)(10) requires a certified translation of the judgment into English, if the original judgment is not in English. What constitutes an acceptable certification is left to other law of the state. The intent is that what would constitute an acceptable certification of a translation of a Canadian judgment in an action for recognition under UFCMJRA Section 6 also would be an acceptable certification under this Act.
  14. Subsection (b)(11) requires payment of a registration fee to the Clerk of Court. It is based on Section 5 of the ULC Revised Uniform Enforcement of Foreign Judgments Act (1964) (dealing with registration of sister-state judgments). Payment of this registration fee is a requirement for issuance of a docket number and entry in the docket by the Clerk of Court under subsection (c).
  15. In addition to payment of the registration fee, subsection (c) makes receipt of a registration that includes all the documents and information listed in subsection (b) a requirement for the Clerk of Court to register the judgment, issue a docket number (required under Section 6 to give notice to the person against whom registration of the judgment is sought) and enter the registration in the Court’s registration docket.
  16. Subsection (b) requires that the registration be executed by the person registering the judgment or that person’s attorney. The word “executed” was chosen rather than the word “authenticated” or “signed” in order to avoid any connotation as to whether the requirement can be satisfied by an electronic signature. Whether the court will accept the registration of a Canadian judgment as an electronic filing is left to other law of the state.
  17. Section 4 does not require that the information necessary for registration be provided in any particular form. Subsection (d), however, provides a standard form for registration of a Canadian money judgment under this Act. Use of the form is voluntary; however, its use does provide a safe harbor. Under subsection (d), a registration substantially as provided by the form and including the attachments specified in the form meets the requirements for registration under subsection (b). The form requests certain information that is not required by subsection (b), but which is practical and helpful. This information is marked as “optional” on the form. Failure to provide this optional information does not affect the determination of whether a submission is substantially as provided by the form.

9-35-5. Effect of registration.

  1. Subject to subsection (b) of this section, a Canadian judgment registered under § 9-35-4 has the same effect provided in § 9-34-7 for a judgment a court determines to be entitled to recognition.
  2. A Canadian judgment registered under § 9-35-4 may not be enforced by sale or other disposition of property, or by seizure of property or trustee process, until thirty-one (31) days after notice under § 9-35-6 of registration is served. The court for cause may provide for a shorter or longer time. This subsection does not preclude use of relief available under law of this state other than this chapter to prevent dissipation, disposition, or removal of property.

History of Section. P.L. 2021, ch. 134, § 2, effective July 3, 2021; P.L. 2021, ch. 156, § 2, effective July 3, 2021.

Official Comment.

Legislative Note: The state should select between the bracketed terms “garnishment” and “trustee process” depending on how this type of enforcement action is described in state law. If the state uses another term to describe this type of enforcement action, the state should insert that term instead of “garnishment” or “trustee process”.

Comment.

  1. The effect of registration under this Act is that the judgment is considered recognized, subject to a period during which certain means of enforcing the judgment are prohibited in order to provide the person against whom the judgment has been registered an opportunity to raise any defenses that would cause the registration to be vacated. Subsection (a) states the basic rule that a registered judgment is given the same effect as a judgment that has been determined by a court to be entitled to recognition under Section 7 of the UFCMJRA. Thus, once registered, (and subject to the period provided in subsection (b)), a Canadian judgment is (1) conclusive between the parties to the same extent as the judgment of a sister-state entitled to full faith and credit and (2) enforceable in the same manner and to the same extent as a judgment rendered in the recognizing state.  See UFCMJRA § 7. Section 14 of the Canadian UEFJA contains similar provisions, providing that, “[o]n registration, a foreign judgment is enforceable as if it were a judgment of the enforcing court,” and the enforcing court “has the same jurisdiction and control over a registered foreign judgment as it has over its own judgments and may order enforcement in respect of one or more of its parts.”
  2. Subsection (b) provides that the person registering the judgment may not enforce the judgment by sale or other disposition of property or by seizure or garnishment of property until 31 days after service of notice of the registration on the person against whom the judgment is registered. The intent of this subsection is to provide a period during which a person against whom a judgment has been registered can take action to have the registration vacated before being subject to enforcement acts that could be dispositive with regard to the person’s property. Section 14(3) of the Canadian UEFJA contains an analogous provision, which states that a registered judgment “may not be enforced by the sale or other disposition of any property of the judgment debtor before the expiry of 30 days after the judgment debtor has received notice of the proceedings to register the foreign judgment, or any longer period that the enforcing court may allow.” Harmonization on this issue is not complete, as subsection (b) prohibits enforcement acts that are short of final disposition of the property, but nevertheless may cause irreversible harm to the person against whom the judgment is registered.
  3. Subsection (b) is a crucial provision in establishing an appropriate balance between protecting the person against whom the judgment is registered, who may have a valid defense to recognition of the judgment, and permitting the person registering the judgment to effectively and efficiently enforce its judgment, including avoiding dissipation of assets. Subsection (b) strikes this balance by, first, providing that until 31 days after service of notice of registration, the person registering the judgment may not enforce the registered judgment through disposition, seizure or garnishment of the property of the person against whom the judgment is registered. As discussed above, this prohibition on enforcement actions is broader than that in the Canadian UEFJA, Section 14(3), which only prohibits enforcement through sale or other disposition of the property. Expansion of the protection afforded the person against whom the judgment is registered was warranted because actions short of disposition, such as garnishment of bank accounts, could cause potentially irreversible harm. Subsection (b), however, also provides several protections of the interests of the person registering the judgment. The prohibition on enforcement actions does not prevent all actions related to enforcement, but only those specifically listed. Thus, for example, it does not prohibit discovery seeking information about property that may be available to satisfy the judgment. Nor does it prohibit enforcement activity short of seizure or garnishment, such as placing a lien on the property of the person against whom the judgment is registered. The person registering the judgment, therefore, is not prohibited from establishing its priority to the assets during the 30-day period vis a vis other creditors of the person against whom the judgment is registered. Subsection (b) also provides that the court may shorten the 30-day period (as well as lengthen it) for cause. (Section 14(3) of the Canadian UEFJA only allows the court to lengthen the period.) Finally, subsection (b) does not preclude use of other laws of the state that provide relief against dissipation, disposition or removal of assets potentially available to satisfy the judgment.
  4. Subsection (b) provides that the 30-day period during which certain enforcement acts are prohibited may be shortened or lengthened by the court for cause. Given the varied factual circumstances that will justify altering the period, establishing a specific standard is impracticable. Instead, the standard is left to judicial development. The “for cause” language is intended as a signal to the court that, although the decision to alter the time period is within its discretion, there should be a significant reason for altering the time period. It should not be altered as a matter of course, but only when there are circumstances that justify the lengthening or shortening. This is particularly the case as the 30-day time period in this section normally should coordinate with the 30-day period in Section 7 (a) during which the person against whom the judgment is registered may file a petition to vacate the registration.

9-35-6. Notice of registration.

  1. A person that registers a Canadian judgment under § 9-35-4 shall cause notice of registration to be served on the person against whom the judgment has been registered.
  2. Notice under this section must be served in the same manner that a summons and complaint must be served in an action seeking recognition under § 9-34-6 of a foreign-country money judgment.
  3. Notice under this section must include:
    1. The date of registration and court in which the judgment was registered;
    2. The civil action number assigned to the registration;
    3. The name and address of:
      1. The person registering the judgment; and
      2. The person’s attorney, if any;
    4. A copy of the registration, including the documents required under § 9-35-4(b) ; and
    5. A statement that:
      1. The person against whom the judgment has been registered, not later than thirty (30) days after the date of service of notice, may petition the court to vacate the registration; and
      2. The court for cause may provide for a shorter or longer time.
  4. Proof of service of notice under this section must be filed with the clerk of the court.

History of Section. P.L. 2021, ch. 134, § 2, effective July 3, 2021; P.L. 2021, ch. 156, § 2, effective July 3, 2021.

Official Comment.

Legislative Note: “Complaint” is bracketed in subsection (b). The state should insert the appropriate term in the state to describe the initial pleading filed to commence a civil action.

“Registration” is bracketed in subsection (c)(2). The state should insert the appropriate term in the state for the docket in which the registration is filed.

“Petition” is bracketed in subsection (c)(5(A). The state should insert the appropriate term in the state for a request for relief from a judgment.

“Clerk” is bracketed in subsection (d). The state should insert the appropriate term in the state for the court officer.

Comment.

  1. Subsection (a) requires that notice of the registration be served on the person against whom the judgment has been registered. Section 12(4)(b) of the Canadian UEFJA contains an analogous requirement.
  2. The time of service of notice is a crucial measuring point under this Act. Both the 30-day non-enforcement period in Section 5(b) and the 30-day period in Section 7 (a) during which a person against whom a judgment is registered may file a petition to vacate the registration are measured from the time of service of notice. Prompt and adequate service of notice thus is critical to the ability of the person registering the judgment to enforce the registered judgment.
  3. Registering a Canadian judgment is an alternative to the commencement of a lawsuit for its recognition. Nevertheless, some of the rules that apply to commencement of a lawsuit also apply in the registration context. Subsection (b) provides that the manner in which notice is to be given is the same as that provided by the rules governing service of summons and complaint in an action for recognition of a foreign-country judgment. Cf. Reciprocal Enforcement of Judgments Act of the Province of Alberta, § 6(1)(a) (notice of registration to be served “in the same manner as a statement of claim is required to be served”). The subsection (b) reference to other law for the specific methodology by which notice is given includes not only the rules governing the method of service, but also those concerning other service-related issues, such as the timing of service and the time by which proof of service must be filed with the clerk of court.
  4. The requirement under subsection (b) that notice of registration be served in the same manner as a summons and complaint normally will result in personal service of the registration notice, and is an important protection for the person against whom the judgment is registered. The requirement also harmonizes the Act with Canadian law on this issue. Registration under both the Reciprocal Enforcement of Judgments Acts and the Canadian UEFJA requires personal service. The rationales for requiring personal service in Canada are that (1) registration is the commencement of a new process rather than a corollary to an existing one in the enforcing jurisdiction, (2) because the person against whom the judgment is registered can object to registration and enforcement, that person should receive personal notice of the intended action, and (3) personal service is the best way to establish when the timelines in the registration process commence. The rationales for the Canadian personal service requirement and the desire to maintain parity between the Canadian and U.S. registration procedures to the extent practicable, provide additional reasons for the personal service requirement in subsection (b).
  5. Subsection (c) lists the information that must be included in the notice of registration, including information regarding the registration and the person registering the judgment. Subsection (c)(4) requires that a copy of the registration, including a copy of the documents required to be filed with the registration under Section 4(b), must be included with the notice. Subsection (c)(5) requires that a statement be included in the notice informing the person against whom the judgment has been registered that the person has 30 days after service in which to petition the court to vacate the registration, subject to the court’s ability to alter that time period for cause.
  6. Subsection (d) requires that proof of service of the notice of registration be filed with the clerk of court. The time by which the proof of service must be filed is one of the issues left to the rules governing service of a summons and complaint under subsection (b). See comment 2.

9-35-7. Petition to vacate registration.

  1. Not later than thirty (30) days after notice under § 9-35-6 is served, the person against whom the judgment was registered may petition the court to vacate the registration. The court for cause may provide for a shorter or longer time for filing the petition.
  2. A petition under this section may assert only:
    1. A ground that could be asserted to deny recognition of the judgment under chapter 34 of title 9; or
    2. A failure to comply with a requirement of this chapter for registration of the judgment.
  3. A petition filed under this section does not itself stay enforcement of the registered judgment.
  4. If the court grants a petition under this section, the registration is vacated, and any act under the registration to enforce the registered judgment is void.
  5. If the court grants a petition under this section on a ground under subsection (b)(1) of this section, the court also shall render a judgment denying recognition of the Canadian judgment. A judgment rendered under this subsection has the same effect as a judgment denying recognition to a judgment on the same ground under chapter 34 of title 9.

History of Section. P.L. 2021, ch. 134, § 2, effective July 3, 2021; P.L. 2021, ch. 156, § 2, effective July 3, 2021.

Official Comment.

Legislative Note: “Petition” is bracketed in the title and text of this section. The state should insert the appropriate term in the state for a request for relief from a judgment.

“Judgment’ is bracketed in subsection (e). The state should insert the appropriate term in the state to describe a final court determination of the merits of a case.

Comment.

  1. A primary consequence of a registration process for recognition of Canadian judgments is that it shifts the burden of invoking judicial scrutiny of the foreign judgment from the person seeking recognition of the judgment to the person seeking to avoid recognition. This section provides the procedure by which the person seeking to avoid recognition can invoke that judicial scrutiny. It provides that the person seeking to avoid recognition through registration may file a petition with the court within 30 days after service of notice of registration, stating its objections to recognition of the judgment by registration. The effect of filing a petition to vacate the registration is to invoke the judicial process for ultimate determination of whether the Canadian judgment will be registered, and, if the basis for vacating the registration is that the judgment is not entitled to recognition on a ground found in the UFCMJRA, for determination of whether the judgment is entitled to be recognized in accordance with the UFCMJRA as well. See subsection (e) and comment 8 below. Once a petition to vacate the registration is filed, the case will move forward as a matter to be determined by the court.
  2. Subsection (a) requires that a petition to vacate the registration be filed with the court no later than 30 days after the person against whom the judgment is registered is served with notice under Section 6. The court may shorten or lengthen the filing period for cause. Given the varied factual circumstances that will justify altering the period, establishing a specific standard is impracticable. Instead, the standard is left to judicial development. The “for cause” language is intended as a signal to the court that, although the decision to alter the time period is within its discretion, there should be a significant reason for altering the time period. It should not be altered as a matter of course, but only when there are circumstances that justify the lengthening or shortening. This is particularly the case as the 30-day time period in this section normally should coordinate with the 30-day period in Section 5(b) during which certain enforcement actions against the property of the person against whom the judgment is registered are prohibited.
  3. Subsection (b) divides the grounds upon which a registration may be vacated into two categories. Under subsection (b)(1), a judgment debtor may assert as a basis for vacating the registration any ground that could be asserted to deny recognition to the Canadian judgment under the UFCMJRA. Given the “plug in” relationship of this Act to the UFCMJRA, subsection (b)(1) references the grounds for refusing recognition under the UFCMJRA rather than restating them. The defenses to recognition of a foreign-country judgment under the UFCMJRA are contained in UFCMJRA Section 4. Under this section, those defenses also are available to vacate registration of the judgment.
  4. Subsection (b)(2) provides that a judgment debtor also may seek to have the registration vacated based on the failure of the person registering the judgment to comply with the requirements for registration under this Act. See Sections 4 and 6. While the subsection (b)(1) grounds for setting aside the registration relate to whether the Canadian judgment should be recognized at all (at least under the UFCMJRA), the subsection (b)(2) grounds for vacating the registration relate only to whether the person registering the judgment properly followed the registration process. For example, Section 4(a) requires that the person seeking recognition of a Canadian judgment through registration must do so for the purpose of enforcing the judgment. If recognition is sought solely for the preclusive effect of the judgment, then the registration procedure cannot be used. The judgment still may be entitled to recognition; the registration procedure simply is not the proper procedure by which to obtain that recognition. See Section 9(d)(2).
  5. U.S. courts consistently have held that a person opposing recognition may not seek to re-litigate the merits of the underlying case that lead to the judgment for which recognition is sought. Similarly, a person seeking to vacate registration of a Canadian judgment may not seek to relitigate the merits of the underlying case as a basis for vacating the registration.
  6. Subsection (c) states that filing a petition to vacate the registration does not automatically stay enforcement of the registered judgment. Instead, in order to stay all enforcement activities until the petition to vacate the registration is determined (including those listed in Section 5(b) beyond the 30-day period), the person against whom the judgment was registered must request a stay of enforcement from the court under Section 8.
  7. Subsection (d) states the effect of a court determination that the registration should be vacated – the registration is vacated, and any acts that have been taken under the registration to collect the judgment are void.
  8. Subsection (e) provides that, if a registration is vacated on the basis that the Canadian judgment is not entitled to recognition on a ground upon which recognition would be denied under the UFCMJRA, then, in addition to vacating the registration, the court shall issue a judgment denying recognition to the Canadian judgment. As discussed in comment 3 above, the subsection (b)(1) grounds for vacating a registration are the same as the grounds for denying recognition to a Canadian judgment under the UFCMJRA. Therefore, if the court finds that one of those grounds exists, the result is not only that the registration is vacated, but also that recognition of the Canadian judgment is denied. Subsection (e) further provides that a judgment denying recognition on a subsection (b)(1) ground has the same effect as a judgment denying recognition on the same ground under the UFCMJRA.
  9. This section is based in part on Section 6 of the Reciprocal Enforcement of Judgments Act of the Province of Alberta.

In addition to the UFCMJRA Section 4 defenses to recognition (which provide the only substantive grounds for denying recognition), there are other grounds for denying recognition under the UFCMJRA, and those grounds also are available to the person against whom the Canadian judgment has been registered under subsection (b)(1). For example, another ground for denying recognition to a judgment under the UFCMJRA is that the judgment is not one to which the UFCMJRA applies under UFCMJRA Section 3. Section 3 of this Act provides that this Act applies to a Canadian judgment to the extent the judgment is within the scope of the UFCMJRA; therefore, if a judgment does not come within the scope of UFCMJRA Section 3, it also cannot be registered under this Act. (Canadian judgments not within the scope of the UFCMJRA, and thus not within the scope of this Act, of course, still can be recognized by a court under principles of comity or other applicable law. See UFCMJRA Section 11.) A third ground for denying recognition to a judgment under the UFCMJRA is that the action is barred by the statute of limitations found in UFCMJRA Section 9. This ground also would be available under this section as a basis to vacate registration of the judgment. As these examples illustrate, the intent of subsection (b)(1) is to allow the person against whom registration is sought to raise as a ground for vacating the registration any ground that would be available in this state as a basis for denying recognition to the judgment under the UFCMJRA.

The following examples illustrate the application of subsection (b)(1):

Example 1. Judgment Creditor registers a Canadian judgment against Judgment Debtor under Section 4 of this Act. Judgment Debtor files a timely petition to vacate the registration under this section on the ground that the Canadian court rendering the judgment did not have personal jurisdiction over Judgment Debtor. Under subsection (b)(1), Judgment Debtor may assert as a basis for vacating the registration any ground that could be asserted to deny recognition to the judgment under the UFCMJRA. UFCMJRA Section 4(b)(2) provides that a court “may not recognize a foreign-country judgment if … the foreign court did not have personal jurisdiction over the defendant … .” Therefore, Judgment Debtor may assert lack of personal jurisdiction as a basis for vacating the registration. Further, if the court finds that the Canadian court did not have personal jurisdiction over Judgment Debtor, the court must vacate the registration because UFCMJRA Section 4(b)(2) makes denial of recognition mandatory when the court finds a lack of personal jurisdiction. In addition, under subsection (e) of this section, the court must enter a judgment denying recognition to the Canadian judgment, and the judgment denying recognition will have the same effect as a judgment denying recognition to a foreign judgment for lack of personal jurisdiction under the UFCMJRA – that is, the Canadian judgment will not be recognized in the state.

Example 2. Judgment Creditor registers a Canadian judgment against Judgment Debtor under Section 4 of this Act. Judgment Debtor files a timely petition to vacate the registration under this section on the ground that the Canadian judgment is characterized as a domestic relations judgment under U.S. law and thus is not a judgment to which the UFCMJRA, and, therefore, this Act applies. Section 3 of this Act provides that this Act applies to a Canadian judgment to the extent the judgment is within the scope of UFCMJRA Section 3. UFCMJRA Section 3(b)(3) provides that the UFCMJRA “does not apply to a foreign-country judgment . . . to the extent that the judgment is . . . a judgment for divorce, support, or maintenance, or other judgment rendered in connection with domestic relations.” The fact a judgment is a domestic relations judgment thus is a ground for denying recognition to the judgment under the UFCMJRA. Therefore, under subsection (b)(1) of this section, it also is a ground for vacating the registration of the judgment. In addition, under subsection (e) of this section, the court must enter a judgment denying recognition to the Canadian judgment, and the court’s judgment denying recognition will have the same effect as a judgment denying recognition to a foreign judgment under the UFCMJRA on the ground that the foreign judgment is not within the scope of the UFCMJRA. UFCMJRA Section 11 provides that the UFCMJRA “does not prevent the recognition under principles of comity or otherwise of a foreign-country judgment not within the scope” of the UFCMJRA. Thus, the judgment rendered by the court under subsection (e) would prevent Judgment Creditor from seeking recognition of the judgment under the UFCMJRA or registering the Canadian judgment under this Act, but would not prevent Judgment Creditor from seeking recognition of the judgment under principles of comity or other applicable law, such as, for example, the Uniform Interstate Family Support Act (2008), if the Canadian judgment is one that fits within the scope of that Act.

9-35-8. Stay of enforcement of judgment pending determination of petition.

A person that files a petition under § 9-35-7(a) to vacate registration of a Canadian judgment may request the court to stay enforcement of the judgment pending determination of the petition. The court shall grant the stay if the person establishes a likelihood of success on the merits with regard to a ground listed in § 9-35-7(b) for vacating a registration. The court may require the person to provide security in an amount determined by the court as a condition of granting the stay.

History of Section. P.L. 2021, ch. 134, § 2, effective July 3, 2021; P.L. 2021, ch. 156, § 2, effective July 3, 2021.

Official Comment.

Legislative Note: “Petition” is bracketed in the title and text of this section. The state should insert the appropriate term in the state for a request for relief from a judgment.

Comment.

  1. Under Section 7(c), the filing of a petition to vacate a registration does not of itself stay enforcement of the judgment. Instead, the person filing the petition may request a stay of enforcement under this section pending determination of the petition.
  2. The standard to grant a stay pending determination of a petition to vacate a registration is a showing by the person requesting the stay of a likelihood of success on the merits with regard to one of the grounds for vacating a registration listed in Section 7(b). The grounds stated in Section 7(b) are the only grounds upon which a registration may be vacated; therefore, a showing of a likelihood of success with regard to one of these grounds provides the appropriate standard for staying enforcement activities pending the determination of a petition to vacate a registration. If the person requesting the stay meets the standard, then the court shall grant the stay.
  3. In an appropriate circumstance, the court may require security pending determination of the petition. Whether to require security and the amount of any security required are within the discretion of the court.

9-35-9. Relationship to uniform foreign-country money judgments recognition act.

  1. This chapter supplements chapter 34 of title 9 and that chapter, other than § 9-34-6 , applies to a registration under this chapter.
  2. A person may seek recognition of a Canadian judgment described in § 9-35-3 either:
    1. By registration under this chapter; or
    2. Under § 9-34-6 .
  3. Subject to subsection (d) of this section, a person may not seek recognition in this state of the same judgment or part of a judgment described in § 9-35-3(b) or (c) with regard to the same person under both this chapter and § 9-34-6 .
  4. If the court grants a petition to vacate a registration solely on a ground under § 9-35-7(b)(2) , the person seeking registration may:
    1. If the defect in the registration can be cured, file a new registration under this chapter; or
    2. Seek recognition of the judgment under § 9-34-6 .

History of Section. P.L. 2021, ch. 134, § 2, effective July 3, 2021; P.L. 2021, ch. 156, § 2, effective July 3, 2021.

Official Comment.

Legislative Note: “Petition” is bracketed in subsection (d). The state should insert the appropriate term in the state for a request for relief from a judgment.

Comment.

  1. Subsection (a) states the relationship between this Act and the UFCMJRA. The conceptual approach in drafting this Act is to create a “module” that will “plug in” to the provisions of the UFCMJRA. This approach means that the provisions contained in the UFCMJRA need not be restated in this Act, as those provisions will apply equally to this Act. The only exception to this rule is Section 6 of the UFCMJRA. Unlike Section 6 of the UFCMJRA, this Act does not require that the person seeking recognition of a Canadian judgment file a court action. Therefore, Section 6 of the UFCMJRA does not apply to this Act. In providing for application of the rules of the UFCMJRA, the intent of this section is that all of those rules (other than Section 6) will apply, including not only substantive rules, but also other provisions, such as those dealing with allocation of burdens of proof and limitation of actions.
  2. This Act is intended to provide an alternative procedure to the filing of an action under UFCMJRA Section 6 with regard to Canadian judgments. It does not prevent a person seeking recognition of a Canadian judgment from choosing to file an action seeking recognition as provided in UFCMJRA Section 6 rather than using this Act. The import of subsection (b) is that a person may seek recognition of a Canadian judgment either by registering it under this Act or by commencing a court action under Section 6 of the UFCMJRA. Cf. Revised Uniform Enforcement of Foreign Judgments Act (1964), Section 6 (dealing with registration of sister-state judgments) (“[t]he right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this Act remains unimpaired.”).
  3. Subsection (c) states the corollary to subsection (b) – a person must choose between the two means of seeking recognition of a Canadian judgment; both procedures may not be pursued at the same time against the same person with regard to the same judgment, or, in the case of a mixed judgment, the same portion of a judgment, in the same jurisdiction. To provide otherwise would lead to inefficiency and waste of judicial resources. Subsection (c), however, does not prevent a person from pursuing different procedures within this state for recognition of a judgment with regard to different persons obligated on the judgment. Subsection (c) also does not prevent the use of different procedures (registration or filing an action for recognition) in different states with regard to the same judgment or part of a judgment.
  4. Subsection (c) is subject to the limited exception found in subsection (d). Under subsection (d), when a registration is vacated solely because of a failure to comply with a requirement for registration under this Act (see Section 7(b)(2)), the person whose registration was vacated is not precluded from further efforts to obtain recognition of the judgment. Instead, subsection (d) gives the person whose registration was vacated a choice – it may either file a new registration (assuming the defect in the previous registration is one that can be cured) or file an action under Section 6 of the UFCMJRA seeking recognition of the Canadian judgment.
  5. Section 3 of this Act provides that the Act applies to a Canadian judgment that is within the scope of the UFCMJRA, if registration is sought for the purpose of enforcement. Thus, the registration procedure under this Act is available with regard to any Canadian judgment that could be considered for recognition through an action filed under the UFCMJRA, if the requirements for registration (including the requirement that recognition of the judgment through registration is being sought for the purpose of enforcing the judgment) are met. The corollary is that judgments not within the scope of the UFCMJRA are not within the scope of this Act. Those judgments continue to be recognized and enforced as they have been prior to this Act. Section 11 of the UFCMJRA states with regard to judgments not within its scope (and thus not within the scope of this Act) that they may be recognized “under principles of comity or otherwise.”

9-35-10. Uniformity of application and interpretation.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

History of Section. P.L. 2021, ch. 134, § 2, effective July 3, 2021; P.L. 2021, ch. 156, § 2, effective July 3, 2021.

9-35-11. Transitional provision.

This chapter applies to the registration of a Canadian judgment entered in a proceeding that is commenced in Canada on or after the effective date of this chapter [July 3, 2021].

History of Section. P.L. 2021, ch. 134, § 2, effective July 3, 2021; P.L. 2021, ch. 156, § 2, effective July 3, 2021.

Official Comment.

The Canadian UEFJA does not apply to foreign judgments “rendered in proceedings commenced before the coming into force of [the] Act.” Canadian UEFJA § 3(f). This section places a comparable limitation on this Act. The Act applies only to a judgment entered in a proceeding commenced in Canada on or after the effective date of the Act. Thus, the critical date for determining whether this Act applies is the date the original proceeding that resulted in the Canadian judgment was commenced in the Canadian court.

9-35-12. Official comments.

It is the intention of the general assembly that the official comments to the Uniform Registration of Canadian Money Judgments Act as approved and recommended for enactment in all the States by the National Conference of Commissioners on Uniform State Laws in 2019 represent the express legislative intent of the general assembly and shall be used as a guide for interpretation of this chapter.

History of Section. P.L. 2021, ch. 134, § 2, effective July 3, 2021; P.L. 2021, ch. 156, § 2, effective July 3, 2021.