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November 2013 Archives

Federal District Court Screams For Ice Cream Franchise Venue Provision

In a decision sprinkled with ice cream puns, the Rhode Island federal district court has enforced a venue provision in an ice cream store franchise agreement and ordered the case transferred to the District of Arizona. The court rejected the franchisees' arguments that the venue provision was unconscionable or unreasonable.

R.I. Supreme Court Holds Trial Court Abused Discretion By Excluding Or Discounting Expert Testimony On Value of Stone Wall And Trees

The Rhode Island Supreme Court has held the Superior Court abused its discretion by excluding the potential testimony of a geology professor as an expert on stone walls and by discounting the expert testimony of a professional arborist on the value of trees. The Court said its recent decisions on expert testimony were intended to liberalize the admission of expert testimony and that the proposed testimony had sufficiently reliable bases.

Federal District Court Allows Malpractice Claim For Unauthorized Practice Of Law

The federal district court has denied defendant lawyers' motion for judgment on the pleadings holding that issues of fact preclude dismissal of plaintiff's legal malpractice claim for the authorized practice of law.

Strauss Factor Lawyer Meghan Barry Does Some Fancy Stepping

One of our lawyers, Meghan "Riverdance" Barry, does Irish step-dancing as a hobby. She did it as a child and a couple of years ago began again for fun and fitness, although apparently, she is still quite competitive. She danced on Sunday and her dance team got a first and a second place.  They won their last competition for being, in Meghan's humble words, "least horrible."  Another local young lawyer, Kristina Hultman, dances with her. 

Superior Court Holds Hotel Operator Was Not Third-Party Beneficiary Of Owner's Contract With General Contractor But Issue Of Fact Whether Operator Was Assignee Of Owner

In a dispute over the construction of a Newport hotel, the Rhode Island Superior Court has partially granted and partially denied the general contractor's summary judgment motion respecting whether the hotel operator could bring claims for damages. The Court held as a matter of law that the operator was not a third-party beneficiary of the contract between the hotel owner and the contractor and was not the owner's successor. However, the Court said there were material issues of fact regarding whether the operator was the assignee of the owner.

Superior Court Holds DBR Lacks Authority To Authorize Sale Of Distilled Liquor By The Bottle

The Superior Court has held that the Rhode Island Department of Business Regulation ("DBR") lacked the authority to authorize a nightclub (the "Club") to sell distilled liquor by the bottle to its patrons in the "VIP" section. In a challenge brought by the Providence Board of Licenses, the Court said the General Assembly had not delegated this authority to DBR.

Asbestos-Superior Court Grants In Camera Review Of Bankruptcy Trust Claims Forms To Determine Discoverability

In ruling on defendant's motion for reconsideration, the Rhode Island Superior Court has held it will do an in camera review of plaintiff's bankruptcy trust claims forms to determine if they are discoverable to support defendant's theory that the forms may contradict plaintiff's decedent's testimony about exposure to its products.  However, the Court affirmed its prior ruling that the claims forms are not discoverable to show decendent's exposure to defendant's products was not a substantial causative factor in the development of his disease.

Superior Court Holds Majority Owners Of LLCs In Civil Contempt For Distributing Assets

The Superior Court has held the majority owners of a limited liability corporation in civil contempt for distributing assets to themselves in violation of a temporary restraining order. The Court held the distributions were not in the ordinary course of business where the contemnors failed to follow the LLC's operating agreement in making the distributions.

First Circuit Holds Environmental Indemnity Provision Limited To Costs Necessary To Prevent Release Of Hazardous Materials

The First Circuit has held that an environmental indemnity agreement is limited to costs related to liabilities to third-parties and necessary to prevent the release of hazardous materials. The Court rejected an argument that the agreement covered environmental assessments costs related to a mortgagee's due diligence and to determine if the property was safe for a day care operating on the property.

Federal District Court Grants Protective Order re Deposition of Government Attorney

In a long-running environmental case (yes, I recognize the redundancy), the federal district court has granted the United States' motion for protective order respecting the deposition of one of its attorneys. The Court said the proposed testimony, to the extent it has not been covered by other, prior discovery, could be provided by a different witness whom the Government said it would make available. The Court also precluded discovery of alleged contamination by the Government at other sites.

Superior Court Holds Issues of Fact Preclude Summary Judgment in Dispute Over Control of Closely-Held Corporation

In a dispute between the second wife of the patriarch of a closely-held corporation ("Corporation") and his three sons from his first marriage, the Superior Court, applying Massachusetts law, has held that issues of fact preclude summary judgment where it is disputed what took place at a shareholders' meeting and whether laches barred the sons' complaint respecting an alleged stock call by the corporation.

Federal District Court Uses Harry Potter Imagery To Dismiss Civil Rights Claims Against Town Building Official

The United States District Court has dismissed civil rights claims against a town building official holding that his conduct, while bureaucratic or even a "pain in the ass," did not shock the conscience such that it would support claims for violation of substantive due process or equal protection. In its opinion, the court made numerous allusions to imagery from the "Harry Potter" books.

Bankruptcy Court Sanctions Attorney For Repeated, Meritless Motions to Amend Adversary Complaint

The Bankruptcy Court of the District of Rhode Island has held that it will sanction an attorney for filing repeated, meritless motions to amend an adversary complaint.

Premise Owner Owes Pedestrian No Duty To Maintain Public Sidewalk Or Warn Of Hazards

The Rhode Island Supreme Court has held that the owners of a private premises have no duty to pedestrians to maintain a public sidewalk abutting their premises or to warn pedestrians about dangerous conditions of the sidewalk. The Court also held that a municipal ordinance requiring premises owners to maintain adjoining sidewalks creates a duty to the municipality but not to private pedestrians.

Asbestos-Superior Court Rules Photos Taken At Jobsite Inspection Not Protected by Work Product Doctrine

The Rhode Island Superior Court has held in an asbestos case that photographs taken by defendants' forensic photographer during an inspection of the jobsite of plaintiff's decedent are not protected by the work-product doctrine from discovery by plaintiff who also attended the inspection. However, the Court held that documents that defendants selected from the production by the decedent's employer are protected from discovery by the doctrine. [Disclosure: this firm represents one of the defendants that objected to plaintiff's attempts to discover its photographs and documents].

Attorney's Fees Are Dischargeable In Client's Bankruptcy Absent Proof Of Client's Fraudulent Intent

The Bankruptcy Appellate Panel of the First Circuit has affirmed a holding that an attorney's fees for services rendered to the debtor were discharged where the attorney failed to establish that the insured fraudulently retained her.

First Circuit Reverses Judgment Against Flood Insurer

The First Circuit has reversed a judgment that entered on behalf of a flood insurance policyholder. The Court held that the insured failed to comply with the special requirements under federal law to recover under the policy, in particular of submitting a timely claim and a sworn proof of loss.

Federal District Court Denies Title Insurer's Summary Judgment Motion

This is the most recent decision in a long-festering morass of state and federal litigation respecting a condominium development in Newport, Rhode Island known as "Goat Island South" ("GIS"). The title insurer for the development moved for summary judgment on a $10 million claim brought by the developer arguing that the developer had failed to submit to an examination under oath ("EUO"); had prejudiced the insurer by submitting a late notice; the policy did not cover certain parts of the development known as the North Unit; and claims related to amendments to the condominium documents after the policy issued were not covered. The federal district court denied the motion finding there were material issues of disputed fact with respect to all the insurer's arguments.