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Cotter v. Dias

Supreme Court of Rhode Island

January 12, 2016

Linda Cotter
Kevin Dias, et al

(PC 08-626).

For Plaintiff: Patrick J. Sullivan, Esq.

For Defendants: Megan J. Goguen, Esq., Joshua E. Carlin, Esq., Mary Welsh McBurney, Esq.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


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Paul A. Suttell, Chief Justice

The plaintiff, Linda Cotter, appeals from a judgment in favor of the defendants, Kevin Dias, Walgreen Company, and Walgreen Eastern Co., Inc., in this negligence action. The plaintiff argues that the trial justice erred in denying her motion for a continuance and in dismissing her complaint with prejudice under Rule 41(b) of the Superior Court Rules of Civil Procedure. This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we vacate the judgment and remand the case for a new trial.


Facts and Procedural History

On January 31, 2008, plaintiff filed a complaint in Superior Court against defendants alleging that, on February 6, 2005, she was shopping at the Walgreens store on Broad Street in Cranston when she was hit and injured by a ball that Dias, an employee of Walgreens, had thrown. A second amended complaint, filed in June 2013, alleged that Dias had attempted to throw the ball to a co-worker. The case was eventually designated to court annexed arbitration, and an arbitration award was filed, but defendant Walgreen Eastern Co., Inc. rejected the award.[1] On October 4, 2012, plaintiff's attorney was allowed to withdraw and plaintiff proceeded pro se. After plaintiff failed to appear for a pretrial conference on February 22, 2013, her case was dismissed and a judgment entered in favor of defendants. On March 8, 2013, new counsel entered his appearance on behalf of plaintiff. Thereafter, plaintiff moved to vacate the judgment and the order granting same was entered on April 24, 2013.

This case was reached for trial on December 9, 2013. On December 10 and 11, 2013, the trial justice heard pretrial motions and held an extensive conference concerning the exhibits for the case, pursuant to Rule 16 of the Superior Court Rules of Civil Procedure. After the exhibits were labeled, plaintiff's counsel questioned the trial justice as to why he needed to make copies of the exhibits for the jury. The trial justice responded that during the Rule 16 conference she had " indicated to [plaintiff's counsel] that [he] needed to get [his] exhibits ready, marked [and] have them here * * * numbered and [his] copies made," and she reprimanded plaintiff's counsel because he had not had his exhibits with him the previous day. The trial justice added that plaintiff's counsel was more than half an hour late to court that day, the exhibits he had with him " were

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mixed up[, and] weren't numbered," and he had brought only one set of copies of the exhibits with him. On the record, the trial justice referenced the last trial she had with plaintiff's counsel, stating, " we had a dreadful time * * * when I released your exhibits to you so you could have copies made for the jury." The trial justice explained to plaintiff's counsel that " [i]t's to [counsel's] benefit and [plaintiff's] benefit to have the jurors really understand the case and to have them have their own copies of the exhibits * * *." After plaintiff's counsel stated that he did not have copies for the jury, the trial justice responded: " That's fine. They'll have copies of the defense exhibits and not yours. Nothing I can do about that." [2]

The following day, plaintiff's counsel arrived to court at approximately 9:50 a.m. When the trial justice inquired why he was late, plaintiff's counsel responded that " nothing was put on the record * * * as far as what time [c]ourt was supposed to be." He added, " I asked your clerk * * * [and] [h]e said come around quarter of ten." The court clerk interjected, stating, " I didn't say that." Subsequently, the trial justice responded, " I met with you * * * in my chambers at the end of the day and I told you we had a real time issue with this case if we wanted to get it to trial. I told you to be here first thing at 9:30 * * *." The trial justice continued to chastise plaintiff's counsel in open court, stating " you've been late every day. You need to satisfy me very quickly that you're trial ready and we can move this case expeditiously." The trial justice added, " [y]ou haven't had your exhibits ready; you've made no copies. * * * I need to know if I bring that jury panel in now, I need to know I can get this case finished and not have to declare a mistrial." The plaintiff's counsel responded " [y]es," and the trial continued.

After the jury was empaneled and each side gave opening statements, plaintiff's counsel and the trial justice discussed whether certain witnesses would be providing " live" testimony or whether affidavits would be introduced in their place. In the middle of the discussion, plaintiff moved to dismiss her attorney from the case. The plaintiff told the trial justice: " And, I'm serious, your Honor. I cannot. I can't. * * * I apologize, your Honor. He doesn't speak to me about anything. He doesn't even know what is going on in this case. * * * He doesn't have a clue. I'm sorry." The trial justice expressed concern that this was the third time the case had been " brought in" and stated that the case had been pending since 2005. The plaintiff responded that she could not move forward with her attorney unless he " can get it together." The trial justice responded that she was " not disputing" that plaintiff's counsel was disorganized, and she told plaintiff's counsel that she could " see why [plaintiff] has concerns." Thereafter, the court recessed for the day, allowing plaintiff time to further consider her motion to dismiss counsel.

The following day, plaintiff presented the court with a letter asking to terminate the engagement of her counsel and enumerating eight reasons in support of her request. She also entered an appearance on her own behalf. The defendants responded that, unless plaintiff could secure new counsel immediately or continue pro se, the discharge of her counsel should result in a mistrial because the case would

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need to start over with a new jury. The trial justice then opined that " [t]he only thing I could do for a continuance would be Monday or, possibly, ...

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