Corvese, Edward M.

English

HELIN Digital Commons

1995 Supreme Court of Rhode Island Survey: Civil Procedure

DOCS@RWU

Roger Williams University Law ReviewVolume 1 | Issue 1 Article 9Spring 19961995 Supreme Court of Rhode Island Survey: CivilProcedureEdward M. CorveseRoger Williams University School of LawFollow this and additional works at: http://docs.rwu.edu/rwu_LRThis Survey of Rhode Island Law is brought to you for free and open access by the Journals at DOCS@RWU. It has been accepted for inclusion inRoger Williams University Law Review by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationCorvese, Edward M. (1996) "1995 Supreme Court of Rhode Island Survey: Civil Procedure," Roger Williams University Law Review:Vol. 1: Iss. 1, Article 9.Available at: http://docs.rwu.edu/rwu_LR/vol1/iss1/9220 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 1:213Civil Procedure. Department of Corrections v. Tucker, 657 A.2d546 (R.I. 1995). The decision of an administrative agency had a resjudicata effect on proceedings before another agency as to issuesthat were or could have been decided in the original decision.1In Department of Corrections v. Tucker,2 the Rhode IslandSupreme Court held that the decision of the Personnel AppealBoard (Board)3 had a res judicata effect on a proceeding pendingwith the Commission for Human Rights (Commission).4 The resjudicata effect was on issues that were raised or could have beenraised during the Personnel Appeal Board proceeding.5FACTS AND TRAVELIn Tucker, an African-American male sought employment as acorrectional officer with the Department of Corrections of the Stateof Rhode Island, which initially denied him the position. 6 He sub-sequently brought a charge of discrimination before the Commis-sion. After negotiation proceedings Tucker was allowed to reapply,and as a result, was accepted to the training academy.7 After hesuccessfully completed his training, he began employment as a cor-rectional officer in the Department of Corrections.8Within the first six months, Tucker was accused of urinatingin the yard while supervising inmates, watching television in an1. Res Judicata is the rule that a "final judgment rendered by a court of com-petent jurisdiction on the merits is conclusive as to the rights of the parties andtheir privies, and, as to them, constitutes an absolute bar to a subsequent actioninvolving the same claim, demand or cause of action." Black's Law Dictionary,1305 (5th ed. 1991). See 18 Charles A. Wright et al, Federal Practice & Procedure§ 4401 (1981).2. 657 A.2d 546 (R.I. 1995).3. The Personnel Appeal Board was established to monitor personnel prac-tices of the state. R.I. Gen. Laws § 36-3-6 (1994). Among its duties is to hearappeals by state employees who feel they were dismissed due to their race. R.I.Gen. Laws § 36-4-42 (1995).4. Tucker, 657 A.2d at 550. The Rhode Island Commission for Human Rightswas established to protect any worker who feels aggrieved. R.I. Gen. Laws § 28-5-8 (1994). Among the commission's duties is to hear grievances because of racialdischarge. R.I. Gen. Laws § 28-5-7 (1994).5. Tucker, 657 A.2d at 550.6. Id. at 546.7. Id. at 547.8. Id.SURVEY SECTIONinmate's cell and various other prison violations. 9 These allegedincidents reflected negatively on his probationary reports, whichresulted in his dismissal. Tucker appealed this dismissal to theBoard contending he was the victim of retaliation for the initialcharge of discrimination.10 Tucker also alleged in the appeal thathe was dismissed because of racial discrimination.1 1 On August 2,1990, the Board denied and dismissed the appeal after a publichearing. This decision was not appealed by Tucker. 12However, after the Board's hearing had ended but before theBoard had filed its decision, Tucker filed a complaint with theCommission alleging racial discrimination, as well as discrimina-tion due to his initial charge when Tucker was first denied employ-ment.13  The Board's decision was never brought to theCommission's attention and the issue of res judicata was neverraised. 14 On June 29, 1992, the Commission issued an order toreinstate Tucker on the grounds that Tucker's discharge was inretaliation for Tucker filing the discrimination charge prior to hisemployment.1 5An action to review the decision of the Commission was filedby Tucker in superior court.16 The Department of Corrections filedthe Board's decision with the superior court.' 7 Though it wasraised, the trial justice declined to consider the issue of res judi-cata. This decision was based on the fact that the Board's decisionwas never presented to the Commission. In addition, the issue ofres judicata was never raised before the commission.' 8 The issueon appeal was whether the board's decision had res judicata effecton the proceedings before the Commission.9. Tucker, 657 A.2d at 547.10. Id.11. Id.12. Id.13. Tucker, 657 A.2d at 548.14. Id.15. Id.16. Id.17. Tucker, 657 A.2d at 548.18. Id.1996]222 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 1:213BACKGROUNDThe doctrine of res judicata has long been adhered to in RhodeIsland with respect to decisions of courts. 19 Under the doctrine, aprior decision is deemed binding in a subsequent suit with regardto the issues that were raised or could have been raised.20 Thedecisions of agencies have the same res judicata effect as do thedecisions of courts. 21 This doctrine has been uniformly followed bystate and federal courts. 22 As long as due process is afforded bythe agency's proceedings, its findings are accorded finality. 23 Resjudicata has been held to apply between agencies and federalcourts,2 4 agencies and state courts, 25 among agencies. 2 6ANALYsIs AND HOLDINGThe supreme court held that the trial justice was incorrect andthat the res judicata issue was properly presented to him. 27 Thecourt held that the Board had the jurisdiction to decide any type ofwrongful discharge and that its decision had a res judicata ef-fect.28 The opinion stated that Rhode Island has long adhered tothe principles of res judicata in respect to the decisions of courts19. Id. at 549. See Rhode Island Student Loan Authority v. NELS, Inc., 600A.2d 717 (R.I. 1991); Mulholland Const. Co. v. Lee Pare & Assoc., Inc., 576 A.2d1236 (R.I. 1990); Hebert v. Ventetuolo, 480 A.2d 403 (R.I. 1984).20. Rhode Island Student Loan Authority v. N.E.L.S., Inc., 600 A.2d 1236 (R.I.1990); 18 Charles A. Wright et al., Federal Practice & Procedure § 4449 (1981).21. Restatement (Second) of Judgments § 83(1) (1980).22. Univ. of Tennessee v. Elliot, 478 U.S. 788, 797 (1986); McCuin v. Secretaryof Health and Human Serv., 817 F.2d 161, 172 (1st Cir. 1987); Fitandes v. Perry,537 A.2d 1139, 1140 (Me. 1988).23. Univ. of Tennessee, 478 U.S. at 799. (The due process requirements of afair trial apply to administrative agency hearings). Bourque v. Settore, 589 A.2d815, 823 (R.I. 1991). (A party in an administrative hearing is "entitled to be heardat a meaningful time and in a meaningful manner."). Id.24. Univ. of Tennessee, 478 U.S. at 799; S.M.A. Life Assurance Co. v. Sanchez,777 F.Supp. 15, 18 (D.P.R. 1991).25. Fitandes, 537 A.2d at 1140; Carothers v. Cappozziello, 574 A.2d 1268,1274 (Conn. 1990).26. Knox v. Pennsylvania Bd. of Probation and Parole, 588 A.2d 79, 81 (Pa.Commw. 1991); Neunzig v. Seaman Unified School Dist., 722 P.2d 569, 574 (Kan.1986). But see, Capaldo v. Public Utility Hearing Bd., 75 A.2d 302, 305 (R.I. 1950)(holding that res judicata did not apply when the second hearing was at a muchlater date and there was different evidence).27. Tucker, 657 A.2d at 549.28. Id. at 549-50. The state is a covered employer. R.I. Gen. Laws § 28-5-6(2)(A) (1994).SURVEY SECTIONand that these principles should apply to the decisions of quasi-judicial administrative agencies.29 In doing so, the court followedthe Restatement (Second) of Judgments.30Hearings before the Board and the Commission offered theparties the opportunity to present evidence and make argumentssimilar to hearings before a court. 31 In addition, there was the op-portunity for judicial review of the decisions under both agency'sstatutes.32 Thus, due process was afforded and res judicata wasapplied to the Board's decision.3 3 In Tucker, the Court decided thatthe Board's decision was final due to the fact it was not appealedby Tucker and that the broad area of retaliation included in theBoard's decision was preclusive as to the issues before theCommission.34CONCLUSIONIn Tucker, the Rhode Island Supreme Court followed the Re-statement (Second) of Judgments in holding that the decision of anadministrative agency could have a res judicata effect on proceed-ings before another agency. The case dealt specifically with deci-sions between agencies, but under the court's reasoning statecourts should also be bound by the doctrine to apply administrativedeterminations as long as due process was afforded in the originalproceeding.Edward M. Corvese29. Tucker, 657 A.2d at 549.30. Id. This is a state court but "[flederal res judicata principles have beenheavily influenced by the great advances in the Restatement (Second) of Judg-ments. Federal courts and commentators often cite and rarely depart from therestatement view." Reeder v. Succession of Palmer, 623 So.2d 1268, 1271 (La.1993), cert. denied, 114 S.Ct. 1191 (1994). See Restatement (Second) of Judgments§ 83(1).31. Tucker, 657 A.2d at 549.32. Id. Parties seeking to appeal the decision of The Personnel AppealsBoard, and having exhausted all administrative options, may obtain judicial re-view. R.I. Gen. Laws § 42-35-15 (1994). The same is true in respect to the Com-mission on Human Rights. R.I. Gen. Laws § 28-5-28 (1994).33. Tucker, 657 A.2d at 549-50.34. Id. at 550.19961224 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 1:213Civil Procedure. Ciunci, Inc. v. Logan, 652 A.2d 961 (R.I. 1995).Under the Superior Court Rules of Civil Procedure, a non-residentdefendant does not have to travel to Rhode Island to be deposed ifundue hardship will result to the defendant.'In Ciunci, Inc. v. Logan,2 the Rhode Island Supreme Court ad-dressed whether a non-resident defendant, in order to be deposed,could be ordered to travel to Rhode Island where he was beingsued.3 The court held in Ciunci that the defendant could not beordered to make the trip because undue hardship would result.4FACTS AND TRAVELCiunci, Inc. v. Logan was an insurance subrogation action re-sulting from a fire in the defendant's laundromat. 5 Plaintiff lessoralleged that defendant's negligence resulted in the destruction ofthe building.6 Pursuant to Rhode Island Superior Court Rules ofCivil Procedure Rule 26 the trial justice issued an order directingthat the defendant travel to Rhode Island to be deposed. 7 At thetime the suit was filed, however, defendant was a resident of Loui-1. The opinion does not state the specific rules under examination but Rule26 of the Superior Court Rules of Civil Procedure provides that "[a]ny party maytake the testimony of any person, including a party, by deposition upon oral exami-nation or written interrogatories for the purpose of discovery or for use as evidencein the action or for both purposes." R.I. Sup. Ct. R. Civ. P. 26. Further, "[tiheattendance of witnesses may be compelled by the use of subpoena as provided inRule 45." Id. However, parties to an action only need to be given "reasonable no-tice" for oral depositions. R.I. Sup. Ct. R. Civ. P. 30(a); Carroccio v. DeRobbio, 274A.2d 424, 426 (R.I. 1971). Failure of a party to appear for the taking of the party'sdeposition, after being served with "proper notice," could result in a dismissal ofthe action or default judgment. R.I. Sup. Ct. R. Civ. P. 37(d); Carroccio, 274 A.2dat 425. See also Pinkham v. Paul, 91 F.R.D. 613, 614 (D. Me. 1981) (under theFederal Rules of Civil Procedure, notice is all that is needed to require attendanceof parties to be deposed, there is no need for a subpoena).2. 652 A.2d 961 (R.I. 1995).3. Id. at 962.4. Id. The court held it was an abuse of discretion by the trial judge to orderthe defendant to travel from Louisiana to Rhode Island. To do so was contrary tothe "overwhelming authority" of established law. Id.5. Id. Both parties argued that financial considerations should be ignored.The Court, however, wanted to adopt a rule to apply to all future parties, includingthose without insurance. If they did not, the courts would be inundated with casesrequesting "special consideration." Id.6. Ciunci, 652 A.2d at 962.7. Id.1996] SURVEY SECTIONsiana.8 An unrebutted affidavit submitted by defendant estab-lished that the defendant possessed neither financial savings nor asteady income. 9 The only issue on appeal to the supreme court wasif an out-of-state defendant could be ordered to travel to Rhode Is-land to be deposed if the action is brought in a Rhode Islandcourt. 10BACKGROUNDPrior to Ciunci, the Rhode Island Supreme Court had not ad-dressed the extent of a court's power to order a party to travel ex-tensively in order to be deposed. However, federal cases whichhave involved the same issue have almost uniformly held that adefendant may not be required to travel to a distant state to bedeposed." These holdings are based upon the reluctance of fed-eral courts to order a far-off defendant to incur a substantialamount of inconvenience. 12 However, courts do retain discretion to8. Id.9. Id. The affidavit stated that the defendant "was sixty-three years of age,living on a social security pension and doing some parttime work as a store clerk ina hardware store" with no appreciable savings and also established that he couldnot afford the trip or the related expenses, such as food and lodging. Id.10. Ciunci, 652 A.2d at 962.11. Id. citing Thompson v. Sun Oil Co., 523 F.2d 647, 648 (8th Cir. 1975); Greyv. Continental Marketing Assoc., Inc., 315 F.Supp. 826, 832 (N.D. Ga. 1970);Twardzik v. Sepauley, 286 F.Supp. 346, 350 (E.D. Pa. 1968); General Leasing Co.v. Lawrence Photo-Graphic Supply, Inc., 84 F.R.D. 130, 131 (W.D. Mo. 1979); KurtM. Jachmann Co. v. Hartley, Cooper & Co., 16 F.R.D. 565 (S.D.N.Y. 1954).12. Thompson, 523 F.2d at 648 (refusing to have a company incur "considera-ble expense" in transporting its employees from Pennsylvania to Omaha to be de-posed); Grey, 315 F.Supp. at 832 (holding that the place of deposition is presumedto be in the defendant's home state unless there are unusual circumstances justify-ing the "inconvenience" to the defendant); Twardzik, 286 F.Supp. at 350 (holding itto be "oppressive" to have all the defendants travel over forty miles to be deposed);General Leasing Co., 84 F.R.D. at 131 (holding plaintiff may only obtain requesteddocuments at defendant's place of business because of the "burden" of transportingthe great number requested); Kurt M. Jachmann Co., 16 F.R.D. at 565 (refusing toorder defendants to travel from England to New York to be deposed).Further, it is the plaintiff who chooses the forum in which to litigate. Paytonv. Sears Roebuck and Co., 148 F.R.D. 667, 669 (N.D. Ga. 1993) ("The general ruleis based on the concept that it is the plaintiffs who bring the lawsuit and whoexercise the first choice as to forum."). See also, 8A Charles A. Wright et al., Fed-eral Practice & Procedure § 2112 (1994). Therefore, the plaintiff "should expect toappear for any legal proceedings" there. Undraitis v. Luka, 142 F.R.D. 675, 676(N.D. Ind. 1992). However, this rule is subject to exceptions. Abdullah v. SheridanSquare Press, Inc., 154 F.R.D. 591 (S.D. N.Y. 1994) (holding, where suit wasbrought in New York, depositions would occur in England where plaintiff could not226 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 1:213order a defendant to travel. 13 In certain circumstances, courtscould order a defendant to travel to be deposed. 14ANALYSIS AND HOLDINGBecause the application of Rule 26 was a question of first im-pression in Rhode Island, the court looked for guidance from fed-eral cases which have interpreted the Federal Rules of CivilProcedure after which the Rhode Island Rules were fashioned. 15Since the overwhelming majority of these cases hold that a defend-ant's deposition is to be taken at the defendant's residence or thedefendant's workplace' 6 the court, noting that Rhode Island does"not exist in a vacuum", simply applied this line of reasoning toRule 26 and ruled that the defendant could not be ordered to travelto Rhode Island.17CONCLUSIONThe court's reasoning and decision in Ciunci clearly follows es-tablished federal law. A defendant cannot be required to travel agreat distance to be deposed if it will put the defendant throughhardship.'8 Under the facts of the case, to require a low-incomedefendant residing in Louisiana to travel to Rhode Island wouldhave sued in England and plaintiff could not have left England without losingasylum).13. Thompson, 523 F.2d at 648 ("It is well settled that the district court hasgreat discretion in designating the location of taking a deposition.")14. Newman v. Checkwrite California, Inc., 156 F.R.D. 659 (E.D. Cal. 1994)(defendants could be ordered to travel 164 miles to be deposed because plaintiffshad previously rescheduled the depositions to a time more convenient to defend-ants and defendants did not complain about the location); Undraitis v. Luka, 142F.R.D. 675 (N.D. Ind. 1992) (defendant waived any right to have deposition betaken at his residence where the defendant's attorney waited until five weeksbefore trial to notify plaintiff that defendant would not appear for the deposition indistrict where suit was filed, there was no explanation for the delay, and the plain-tiffs had been trying to arrange the deposition for over one year).15. Ciunci, 652 A.2d at 962 (R.I. 1995) ("We have stated many times thatwhen our Rules of Civil Procedure and our case law are silent on a particular issue,we will look to the body of law that has addressed the question.")16. See supra note 12.17. Ciunci, 652 A.2d at 962. Deference should be given to the "experience andreasoning" of federal and state court judges who interpret the Federal Rules orrules patterned after the Federal Rules such as Rhode Island's. Id.18. Id. (The opinion expressed no view as to the requirements for plaintiffs.However, it did state it would follow established federal law in the area of deposi-tions if Rhode Island law is silent on the issue).SURVEY SECTIONhave been too great a burden on the defendant. However, if thedefendant had resided closer or had a different income, it is possi-ble that a different decision might have resulted. 19Edward M. Corvese19. See Thompson, 523 F.2d at 648; 8A Charles A. Wright et al., Federal Prac-tice & Procedure § 2112 (1994) ("The particular facts of each case will determinethe selection of a place for examination.").1996]

https://docs.rwu.edu/cgi/viewcontent.cgi?article=1013&amp;context=rwu_LR

1995 Supreme Court of Rhode Island Survey: Civil Procedure

Abstract

Similar works

Full text

Available Versions

HELIN Digital Commons

DOCS@RWU

HELIN Digital Commons