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December 2013 Archives

R.I. Supreme Court Holds Seventeen Year Old Cannot Use Attractive Nuisance Doctrine To Sue State For Injury While Trespassing On State Property

The Rhode Island Supreme Court has held that a seventeen year old cannot use the "attractive nuisance" doctrine to sue the State of Rhode Island for personal injuries he suffered-when he was exposed to hazardous materials while trespassing on State property. The youth acknowledge that he knew he was not supposed to be on State property and that what he doing was dangerous.

R.I. Supreme Court Holds Mortgagor Has Standing To Challenge Transfer Of Mortgage, Otherwise Denies Claims Related to Foreclosure

The Rhode Island Supreme Court has held that a mortgagor has standing to challenge a transfer of his mortgage in an effort to prevent a foreclosure. However, the Court otherwise denied the mortgagor's claims in his suit to halt a foreclosure.

First Circuit Affirms Ruling That Civil Rights Plaintiff Entitled To $104,626.34 In Attorney's Fees And Costs For $7,650 Damage Verdict

Based on Massachusetts law, the First Circuit has affirmed a district court finding that a civil rights plaintiff was entitled to $104,626.34 in attorney's fees and costs when her damage award was $7,650. The Court said Massachusetts did not require that the fee award be proportional to the damage award and the case had produced two significant court rulings.

First Circuit Affirms Holding That Home Equity Loan Debt Non-Dischargeable Because It Was Created Through False Pretenses When Debtor Took Advantage Of Bank Mistake

The First Circuit Court of Appeals has affirmed a bankruptcy court decision that a debtor's home equity loan debt was non-dischargeable because it was created through false pretenses. The debtor knew the line of credit should have been closed when she sold her home and paid off the associated mortgage but she subsequently wrote $124,000 of checks on the credit line.

First Circuit Requires Arbitration Of Legal Malpractice Claims Based On Arbitration Clause In Attorney-Client Engagement Letter

The First Circuit has enforced the arbitration clause in a law firm's attorney-client engagement letter and required the firm's former client to arbitrate his claims for legal malpractice and violation of the Maine Unfair Trade Practices Act.

R.I. Superior Court Dismisses Tortious Interference Counterclaim Against Company That Successfully Solicited Defendant's Customers

The Rhode Island Superior Court has held one competitor cannot maintain a claim for tortious interference with contract against another competitor who solicited away customers when there were no binding contracts with the customers and the other competitor's solicitations were common in the industry.

Rhode Island Federal District Court Denies Motion To Assert Third-Party Claim As Untimely

Rhode Island's federal district court has denied plaintiff's motion filed after the close of fact discovery to assert a third-party claim with respect to defendant's counterclaim. The court held the motion was untimely and the proposed third-party complaint deficient in that it was unclear how the proposed claims related to the counterclaim.

First Circuit Refers Legal Questions In Notorious Annuity Dispute to R.I. Supreme Court

A civil lawsuit related to a high-profile criminal prosecution has resulted in the First Circuit referring two questions respecting Rhode Island law on annuities to the Rhode Island Supreme Court. The questions are: 1) If the owner and beneficiary of an annuity with a death benefit is a stranger to the annuitant, is the annuity infirm for want of an insurable interest, and 2) Does a clause in an annuity that purports to make the annuity incontestable from the date of its issuance preclude the maintenance of an action based on the lack of an insurable interest?

R.I. Supreme Court Orders Review Of Subpoena For Psychiatric Records Under Confidentiality Of Health Care Information Act

In a case concerning the discovery of psychiatric records, the Rhode Island Supreme Court has remanded the matter to the Superior Court for additional findings pursuant to the Confidentiality of Health Care Information Act ("CHCIA"), R.I.G.L 5-37.3-1, et seq. The issue arose in the context of a convicted murder's habeas corpus proceeding and his attempt to discover the psychiatric records of a witness in his criminal trial.

First Circuit Affirms Dismissal of Qui Tam Case Alleging False Claims By Pharmaceutical Company

The First Circuit Court of Appeals has affirmed the dismissal for failure to plead fraud with specificity of a qui tam action against a pharmaceutical company alleging violations of the False Claims Act. The State of Rhode Island was one of the governments on behalf of which plaintiff purported to file suit.

R.I. Supreme Court Holds Business Records Exception Does Not Apply Unless Recordkeeper Testifies

The Rhode Island Supreme Court has held that the executor of the estate of a deceased plaintiff cannot introduce a written statement given by the decedent to her insurer without the testimony of the insurer's recordkeeper establishing the statement as its business record under Rule 803(6). The Court also rejected the argument that the statement was admissible under the so-called "residual" hearsay exception, Rule 803(24).

R.I. Superior Court Holds Commercial Landlord Waived Holdover Penalty Provision By Accepting Usual Rent Check

The Rhode Island Superior Court has held that by unconditionally accepting the usual rent payment a commercial landlord has waived the provision in a lease providing for double the usual rent payments when a tenant remains in possession past the term of the lease.

Strauss Factor Associate Diane Kildea Completes Trial Practice Program

This news is a bit old but still worth noting.  Last summer, our associate Diane Kildea completed the very rigorous trial practice program offered by the Massachusetts Continued Legal Education association.  This program consists of 8 consecutive, full days of instruction and practice in all aspects of a trial, including opening statements, direct and cross-examination of lay and expert witnesses and closing arguments.  It concludes with a mock trial on the last day.  Diane is our second associate to complete the program.  In 2012, Meghan Barry did it.  Our partner, Tom Lyons, also did it as a young lawyer, and, no, John Adams was not one of his instructors. 

First Circuit Affirms Dismissal of Wrongful Termination Claims

The First Circuit has affirmed the district court's grant of summary judgment on a variety of wrongful termination claims brought by a sales representative against the printing company that fired him and the company's principal. The various claims include unjust enrichment, intentional interference with prospective contractual relations, oral contract, and intentional or negligent misrepresentation.