Brito v. Capone

• Decision Date: 11 April 2003
• Docket Number: No. 2002-107-Appeal.,2002-107-Appeal.
• Citation: 819 A.2d 663
• Parties: Joseph M. BRITO, Sr. v. Matthew J. CAPONE et al.
• Court: Rhode Island Supreme Court

819 A.2d 663

Joseph M. BRITO, Sr. v. Matthew J. CAPONE et al.

No. 2002-107-Appeal.

Supreme Court of Rhode Island.

April 11, 2003.

Present: WILLIAMS, C.J., FLANDERS, GOLDBERG, JJ, and WEISBERGER (C.J., ret.).

Peter Lawson Kennedy, Providence/James A. Hall, Nagaragansett, for plaintiff.

Robert Fine, Providence, for defendant.

OPINION

PER CURIAM.

The defendants, Matthew J. Capone and Rose E. Capone (defendants), appeal the entry of summary judgment in favor of the plaintiff, Joseph M. Brito, Sr. (plaintiff), in this action on a promissory note as well as the denial of their motion to disqualify plaintiff's counsel. This case came before the Supreme Court for oral argument on March 5, 2003, pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be summarily decided. After considering the record, the parties' memoranda, and the oral arguments of counsel, we conclude that the case should be decided at this time. We affirm the judgment of the Superior Court.

Facts and Travel

On March 29, 2000, defendants executed a promissory note to plaintiff in the amount of $105,188.67. The terms of this note required defendants to make monthly payments, which defendants duly began making on April 29, 2000. The defendants ceased making payments on January 10, 2001, and were subsequently notified by plaintiff that they were in default of their obligation under the terms of the promissory note.

On March 2, 2001, plaintiff commenced an action in Superior Court alleging that defendants had defaulted on the promissory note. The plaintiff subsequently moved for summaryjudgment, arguing that there were no material issues of fact in dispute and that he was entitled to judgment as a matter of law. The defendants, in their memorandum opposing summary judgment, alleged that the amount owed to plaintiff was in dispute.

Timeliness of the Appeal

As a preliminary matter, plaintiff, in his supplemental memorandum to this Court, questioned the timeliness of defendants' appeal. After considering this issue, we conclude that the judgment filed on January 28, 2002, was the first valid judgment entered. This judgment met the requirements of Rule 58(a) of the Superior Court Rules of Civil Procedure, was signed by the clerk, and entered on the court docket. The defendants filed their notice of appeal on February 11, 2002, within twenty days of entry of judgment. Consequently, the appeal was timely. Abbatematteo v. State, 694 A.2d 738, 739-40 (R.I.1997) (per curiam).

Motion to Disqualify Counsel

The defendants have appealed the trial justice's denial of their motion to disqualify plaintiff's counsel pursuant to Article V, Rule 1.9 of the Supreme Court Rules of Professional Conduct. The interpretation of this rule, as a question of law, is subject to de novo review by this Court. Carnevale v. Dupee, 783 A.2d 404, 408 (R.I.2001).

Rule 1.9 prohibits attorneys who have formerly represented a client in a matter from thereafter "represent[ing] another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation" or from "us[ing] information relating to the representation to the disadvantage of the former client * * *."

In this case, plaintiff's counsel represented both plaintiff and Matthew Capone in the formation of a limited liability corporation. There is, however, no evidence in the record that theattorney's former representation of Matthew Capone and current representation of plaintiff were substantially related. See, e.g., American Heritage Agency, Inc. v. Gelinas, 62 Conn.App. 711, 774 A.2d 220, 230 (2001) (quoting Government of India v. Cook Industries, Inc., 569 F.2d 737, 739-40 (2d Cir.1978) and holding that the test for determining whether matters are substantially related has been "honed in its practical application to grant disqualification only upon a showing that the relationship between the issues in the prior and present cases is `patently clear' or when the issues are `identical' or `essentially the same'"). In addition, defendants have not shown that any information counsel received during the formation of the corporation would inure to the disadvantage of Matthew Capone. Consequently, the trial justice was correct in denying the motion to disqualify plaintiff's counsel.

Motion for Summary Judgment

This Court reviews de novo a trial justice's decision to grant summary judgment, applying the same standards as those applied by the trial justice. McKinnon v. Rhode Island Hospital Trust National Bank, 713 A.2d 245, 247 (R.I.1998). Accordingly "if, after reviewing the admissible evidence in the light most favorable to the nonmoving party, we conclude that no genuine issue of material fact exists and that the moving party is entitled...