Elizаbeth MOREL v. Stephen NAPOLITANO, Alias in His Capacity as Treasurer for the City of Providence
No. 2011-312-Appeal
Supreme Court of Rhode Island
May 6, 2013
67 A.3d 1176
In essence, the agenda item simply indicates that a communication had been received from one Turner Scott regarding a petition of Congregation Jeshuat Israel. Moreover, Turner Scott, subsequently identified by the parties as counsel for Congregation Jeshuat Israel, was not identified as such in the notice. The аgenda item further fails to provide any information as to exactly what was the reason for the requested extension or what would be its duration. In no way does the agenda item give notice that the request for extension was to extend the temporal parameters then in effect for the purpose of completing or substantially cоmpleting the improvements.
Accordingly, we hold that this agenda item “does not reasonably describe the purpose of the meeting or the action proposed to be taken * * *” See Tanner, 880 A.2d at 798. Having considered whether, viewing the totality of the circumstances, the agenda item “fairly inform[ed] the public of the nature of the business to be discussed or acted upon,” id. at 797, it is our opinion that the agenda item at issue did not comply with the standards established by the Open Meetings Act.
judgment in favor of the plaintiffs with instructions that the action taken by the zoning board with respect to the “Request for Extension from Turner Scott” be declared null and void and for such further proceedings not inconsistent with this opinion as thе Superior Court deems appropriate. The record in this case may be remanded to the Superior Court.
Rebecca M. McCormick, Esq., Providence, for Defendant.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.
OPINION
Chief Justice SUTTELL, for the Court.
The plaintiff, Elizabeth Morel, filed a civil action against the City of Providence (city)1 for personal injuries she suffered after a school bus that she was operating fell into a sinkhole on a city roadway. A jury trial was held in thе Superior Court, which resulted in a verdict finding that the defendant was negligent and awarding the plaintiff $59,239 in damages. On appeal, the city argues that the trial justice erred “in admitting affidavits that failed to conform to the express requirement of
I
Facts and Procedural History
On April 5, 2006, Morel was operating a school bus on Fairview Street in the city of Providenсe when the front wheels of the bus fell into a trench. Evidence was presented at trial that employees of the Providence Water Supply Board (Providence Water), a public utility and agency of the city, had installed a temporary patch in the road after completing a “remove and install service” on the pipes that ran underneath the area; however, the trench had “washed out” due to a heavy rainfall, causing the patch to fail.
Morel filed a complaint against the city on October 20, 2006. In an amended complaint filed on December 1, 2006, Morel alleged that the city, through Providence Water, had been negligent, careless, and reckless when it exсavated the roadway.
II
Standard of Review
This Court reviews questions of statutory construction and interpretation de novo. Mendes v. Factor, 41 A.3d 994, 1002 (R.I. 2012). When the statutory language is clear and unambiguous, we give the words their plain and ordinary meaning. Id. Therefore, “when we examine an unambiguous statute, there is no room for statutory construction and we must apply the statute as written.” Mutual Development Corp. v. Ward Fisher & Co., LLP, 47 A.3d 319, 328 (R.I. 2012) (quoting In re Harrison, 992 A.2d 990, 994 (R.I. 2010)). Further, “[i]t is well established that the admissibility of evidence is within the sound discretion of the trial justice, and this Court will not interfere with the trial justice[‘]s decision unless a cleаr abuse of that discretion is apparent.” Notarantonio v. Notarantonio, 941 A.2d 138, 149 (R.I. 2008) (quoting DiPetrillo v. Dow Chemical Co., 729 A.2d 677, 690 (R.I. 1999)).
III
Discussion
A
The Affidavits
On appeal, the city argues that, during the trial, Morel was permitted to introduce medical records that were not properly authenticated in accordance with the required procedure set forth in
Morel counters that “[t]he fact that the words ‘under the penalties of perjury’ were not used in no way make[] the affidavit[s] void” because “[t]here is no question that each of the affidavits w[as] signed and sworn to before a valid notary,” as each exрressly states: “[Now comes] the undersigned, being duly sworn, on oath, deposes and states as follows * * *,” and each includes the notary‘s statement that the affidavit was “[s]ubscribed and sworn before” the notary by the affiant. Further, Morel contends that the words “under the penalties of perjury” are not used in depositions, when a person is sworn in during court procеedings, or within an-
This Court has stated that “[s]ection 9-19-27 provides a mechanism for admission of opinion evidence through documentation, without the need for expert testimony.” Boscia v. Sharples, 860 A.2d 674, 679 (R.I. 2004). Although the statutory language clearly requires that the documentary evidence be “subscribed and sworn to under the penalties of perjury,” it does not expressly require that this exact phrase be used. The General Assembly, in at least two other instances, has mandated by statute that certain documents include the phrase “under penalties of perjury.” See
This Court has previously stated that “[o]ur legal system treats with great seriousness a statement that has been sworn to before a notary public. Statements sworn to in affidavits can have immensely serious consequences.” Scarborough v. Wright, 871 A.2d 937, 939 n. 4 (R.I. 2005); see also In re Testa, 489 A.2d 331, 335 (R.I. 1985) (“Because the affidavit was sworn to before a notary public, the statements asserted therein were regarded as truthful and the document is therefоre available as evidence of the facts stated.“). The potential consequence of knowingly swearing to an untruthful statement made within an affidavit is a conviction for perjury.
The city attempts to support its argument by citing to Scarborough, 871 A.2d at 939 (holding that the defendant‘s affidavit did not sufficiently satisfy the requirements of Rule 56 of the Superior Court Rules of Civil Procedure because of the “plaintiff‘s failure to have abided by the clear and specific language of Rule 56“),3 and Chrysler First Financial Services
In Scarborough, 871 A.2d at 938, the plаintiff presented an affidavit that was not notarized and, therefore, we deemed it not to constitute a sufficient affidavit for purposes of Rule 56. This Court defined an affidavit to be “a written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a persоn having authority to administer such oath or affirmation.” Id. at 939 (quoting State v. Haase, 247 Neb. 817, 530 N.W.2d 617, 618 (1995)). In Van Daam, 604 A.2d at 341 n. 1, we said that an unsworn statement was not sufficient to meet the requirements of an affidavit because the document “merely contain[ed] the acknowledgment of a notary that [the defendant‘s] signature [was] his free act and deed” and was “devoid of an acknowledgment that the assertions made within are sworn to before a notary.” Here, the affidavits that Morel presented were clearly signed in the presence of a notary by each affiant and each expressly states that the truth of the factual statements within each affidavit was sworn to under oath. Because the affidavits were subscribed and sworn to under oath in the presence of a notary, we are of the opinion that the legislative requirements contained in
B
Workers’ Compensation Benefits
On appeal, the city also contends that the trial justice clearly abused her discretion by preventing it “from pursuing its well disclosed and announcеd intention to cross-examine the [p]laintiff during trial as to her receipt of workers[‘] compensation.” Before the commencement of trial, by way of a motion in limine, the city sought to introduce evidence that Morel, ignoring medical advice that she was able to return to work, instead chose to remain out of work until the start of the following school year, all the while receiving workers’ compensation benefits. The city maintained that, “[t]o a layman, that raises a suspicion that the plaintiff was interested in remaining out of work for the summer, and the fact she received Worker‘s [sic] Compensation benefits during that time made it more tenable for her to do so.” After offering Soucy v. Martin, 121 R.I. 651, 402 A.2d 1167 (1979), and Bookbinder v. Rotondo, 109 R.I. 346, 285 A.2d 387 (1972), to support its contention that “the [c]ourt is not bound by the Collateral Source Rule to prohibit any mention of [the benefits],” the city requested that the court “take a wait-and-see approach” to determine whether the collateral-source rule prohibited testimony concerning Morel‘s receipt of workers’ compensation bеnefits. The plaintiff contended that evidence of the benefits was clearly inadmissible under
During the trial, while on direct examination, Morel testified that she had tried to go back to work, but that her doctor told her she could not. Morel was asked when that occurred and replied: “I wanted to go back to work because I was paying all my bills with my credit card.” Subsequently, on cross-examination, Morel was asked, “I believe you had said that while you were out of work you had to pay all your bills with a credit card?” to which Morel responded, “Yes.” A sidebar conference took place, at which the city argued that the statеment Morel made during direct examination opened the door to the introduction of the fact that she was receiving workers’ compensation benefits while she was not working. The trial justice determined that Morel‘s comment had not been responsive to the question posed to her and that the city could have moved to strike the comment, but did not do so.
On appeal, the city argues that evidence of plaintiff‘s receipt of workers’ compensation benefits “was not to be offered nakedly for prejudicial value[;] rather, it was to be part of a presentation that included other facts of a prolonged recovery and late diagnosis of a head injury that tended to insulate [p]laintiff from the evidence of her slow recovery.” The city, quoting Capezza v. Hertz Equipment Rental Corp., 118 R.I. 1, 6, 371 A.2d 269, 272 (1977), contends that the trial justice‘s decision was erroneous because the evidence should have been allowed “in order to affect the weight of plaintiff‘s testimony as [she] attempted to establish causation between the alleged injuries and the аccident * * *.” Morel counters that the evidence of workers’ compensation benefits was properly excluded as classic collateral source material.
In Bookbinder, 109 R.I. at 357, 285 A.2d at 393, this Court held that the collateral-source rule was not an absolute bar to the introduction of evidence that the plaintiff was paid by an employer during а period of disability when the evidence was offered to show that the plaintiff was not disabled or was, in fact, working. In the case under review, the record indicates that the trial justice ruled that the evidence concerning Morel‘s receipt of workers’ compensation benefits during her time out of work was inadmissible because it was not offered to disprove her disability or to establish that she was in fact working. The trial justice also noted that the defendant was permitted to question Morel about whether she normally worked during the summer and that the defendant was entitled to reasonable inferences. Furthermore, the trial justice ruled that the basis proffered by the city for the admission of the evidence (i.e., that the plaintiff had an incentive to not return to work) was not sufficient under Bookbinder. We agree and perceive no abuse of discretion in the trial justice‘s ruling that the collateral-source rule excluded the evidence of Morel‘s receipt of workers’ compensation benefits.
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court. The record shall be remanded to the Superior Court.
Notes
“(a) This section is enacted primarily to relievе 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.
* * *
“(b) In any proceeding commenced in any cоurt, commission, or agency, an itemized bill and reports * * * relating to medical, dental, hospital services * * * subscribed and sworn to under the penalties of perjury by the physician, dentist, or authorized agent of the hospital or health care facility * * * shall be admissible as evidence of the fair and reasonable charge for the services аnd/or the necessity of the services or treatment, the diagnosis of the physician or dentist, [or] the prognosis of the physician or dentist * * *.”
“shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certifiеd copies of all papers or parts there-