Ouimette v. Moran

• Decision Date: 06 June 1988
• Docket Number: No. 88-14-C,88-14-C
• Citation: 541 A.2d 855
• Parties: John F. OUIMETTE v. John MORAN. A.
• Court: Rhode Island Supreme Court

Page 855

541 A.2d 855

John F. OUIMETTE v. John MORAN.

No. 88-14-C.A.

Supreme Court of Rhode Island.

June 6, 1988.

Paul J. DiMaio, Grilli, DiMaio & Berson, Providence, Allegra E. Munson, Norfolk, Mass., John A. Bicarri, Wakefield, Mass., for plaintiff.

James E. O'Neil, Atty. Gen., Thomas Dickinson, Asst. Atty. Gen., for defendant.

OPINION

PER CURIAM.

This matter came before the Supreme Court on an order issued to the petitioner, John F. Ouimette, to appear and show cause why his appeal should not be summarily decided. The appeal is from a denial of his application for postconviction relief filed under G.L. 1956 (1985 Reenactment) chapter 9.1 of title 10. In his petition Ouimette alleged prosecutorial and judicial misconduct. In response the state filed a motion to dismiss pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure. Before the hearing on the state's motion to dismiss, both parties filed exhibits and supplemental materials for the trial justice's consideration. After argument on the motion to dismiss, the trial justice entered summary judgment against the petitioner.

First petitioner argues that the trial justice erred in treating the state's motion to dismiss as a motion for summary judgment. In this argument petitioner is clearly in error. In this jurisdiction an application for postconviction relief is civil in nature. State v. Tassone, 417 A.2d 323 (R.I.1980). If a trial justice, in ruling on a motion to dismiss, considers matters outside the scope of the complaint, the motion is converted into a motion for summary judgment. Palmigiano v. State, 120 R.I. 402, 387 A.2d 1382 (1978); Palazzo v. Big G Supermarkets, Inc., 110 R.I. 242, 292 A.2d 235 (1972).

The record shows that both the petitioner and the state filed supplemental materials for consideration by the trial justice. It was petitioner himself who initially presented extraneous materials in the form of exhibits attached to his application. In response the state filed its motion to dismiss and supplemented its motion with exhibits for consideration by the court. Thereafter, petitioner provided the court with additional exhibits to consider. Furthermore, at the hearing on the motion to dismiss, the trial justice invited both sides to file any additional materials for his consideration. He specifically stated, "[I]f the record isn't complete, you have whatever time you need to complete it." Although it was not specifically recorded in the transcript, it is clear from the record that both sides indicated agreement that the record was complete because the court then stated, "[S]ince it is complete I will listen now to any oral argument that counsel wish to make." In view of the fact that petitioner clearly encouraged the trial justice to consider matters outside the scope of the complaint, he cannot now be heard to argue that the trial justice acted improperly in considering the motion as one for summary judgment.

Summary judgment is a drastic remedy to be applied only with great caution. Norberg v. Feist, 495 A.2d 687 (R.I.1985). Nevertheless, in a situation in which there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be issued. One opposing a motion for summary judgment has an affirmative duty to set forth specific facts that show there is a genuine issue of material fact to be resolved at trial. If one fails to do so, summary judgment will be entered. Ardente v. Horan, 117 R.I. 254, 366 A.2d 162 (1976).

The petitioner argues that genuine issues of material fact existed in regard to the prosecutor's knowledge and possession of information about a...