Ludwig v. Kowal

• Decision Date: 29 August 1980
• Docket Number: No. 79-6-A,79-6-A
• Parties: Karl LUDWIG v. Frank J. KOWAL. ppeal.
• Court: Rhode Island Supreme Court

Page 297

419 A.2d 297

Karl LUDWIG v. Frank J. KOWAL.

No. 79-6-Appeal.

Supreme Court of Rhode Island.

Aug. 29, 1980.

Cappuccio & Cappuccio, Frank S. Cappuccio, Westerly, for plaintiff.

Abedon, Michaelson, Stanzler, Biener, Skolnik & Lipsey, Milton Stanzler, Lynette Labinger, Providence, for defendant.

OPINION

WEISBERGER, Justice.

The plaintiff, Karl Ludwig, commenced this civil action, in Kent County Superior Court, against Frank Kowal, the defendant, with the filing of a complaint seeking recovery for the value of stolen jewelry allegedly received and converted to his own use by Kowal. After the trial justice denied Kowal's motion to dismiss, the defendant answered the complaint. Thereafter, the pleadings were amended, and Ludwig filed a motion for summary judgment predicated upon count 3 of his amended complaint which requested double damages in accordance with G.L. 1956 (1969 Reenactment) § 9-1-2, "Civil liability for crimes and offenses." ¹ After argument of counsel and consideration of the parties' affidavits, the court granted plaintiff's motion; judgment for plaintiff in the sum of $96,000 plus interest and costs was entered on October 19, 1978. Later, pursuant to Rule 60(b) of the Superior Court Rules of Civil Procedure, defendant, with the assistance of other counsel, made a motion to vacate the judgment. The trial justice, after a hearing, denied the motion; and an order accordingly entered November 28, 1978. The defendant appeals the award of plaintiff's motion for summary judgment and the subsequent denial of his motion to vacate that judgment.

The events that form the foundation of the present action began on June 4, 1976, when defendant, charged with various counts in four separate indictments, appeared before the Kent County Superior Court. With respect to count 2 of Indictment No. 73-301, which charged defendant with receiving stolen goods in violation of § 11-41-2, ² Kowal pleaded guilty according to the judgment attached to plaintiff's affidavit. Upon the state's recommendation, the court imposed a fine of $500 plus costs. The property that Kowal was convicted of receiving included the jewelry at issue here: one unset diamond and a platinum diamond ring.

In support of his motion for summary judgment, Ludwig submitted an affidavit in which he stated that he had been the owner of a loose diamond and a diamond ring, that this jewelry had been stolen from him, that defendant, Frank J. Kowal, had been convicted of receiving stolen goods in respect to these items and had been adjudged guilty and ordered to pay $500 and costs. Ludwig asserted further that Kowal admitted on June 4, 1976, to having received stolen property "in reference to this jewelry" and that the jewelry has not yet been returned to him. Attached to the affidavit was a photostatic copy of the "Judgment and Disposition" sheet on Indictment No. 73-301. ³

The plaintiff's affidavit listed the value of the articles received by defendant as $16,000 as of the time of the theft and probable receipt by Kowal, and the fair market value as of September 1978 (the time of execution of the affidavit) as $48,000. Ludwig's qualifications as an expert in jewelry appraisal derives-as he alleges in his affidavit and complaint-from his long association with the jewelry business and his special familiarity with the sale of diamonds. ⁴

The defendant's counteraffidavit stated that his plea had not been directed to the merits of the instant indictment but had been entered "to avoid the expense, anxiety and uncertainties as to the outcome of further litigation involving these Indictments." In further response to plaintiff's assertions, Kowal speculated that "if the Defendant came into possession of any merchandise belonging to the Plaintiff as alleged in Plaintiff's Complaint, the Defendant acquired said goods as a bonafide purchaser in the due course of trade and for adequate consideration which Defendant intends to prove at the trial of this case."

The first issue for our determination on this appeal is whether the trial justice properly granted plaintiff's summary-judgment motion. Our inquiry begins with Rule 56 of the Superior Court Rules of Civil Procedure which provides that both the movant and the adverse party may submit supporting affidavits. In passing upon the motion for summary judgment under this rule, it is the province of the trial justice to determine, by an examination of the pleadings, depositions, answers to interrogatories, admissions on file, and the affidavits of the parties, whether these documents present a genuine issue of material fact, "and, if not, whether the moving party is entitled to judgment under the applicable law." Belanger v. Silva, 114 R.I. 266, 267, 331 A.2d 403, 404 (1975). In the resolution of that question, the trial justice considers the pleadings to determine what the issues are and the other documents to ascertain the material facts. Monti v. Leand, 108 R.I. 718, 722, 279 A.2d 743, 745 (1971); Slefkin v. Tarkomian, 103 R.I. 495, 496, 238 A.2d 742, 742-43 (1968).

We test the adequacy of these affidavits in light of the principles enunciated in Rule 56(e). ⁵ Feinerman v. Natelson, 106 R.I. 773, 263 A.2d 698 (1970). An examination of plaintiff's supporting affidavit unmistakably reveals that, unless otherwise sufficiently challenged, he has met his burden and proved his case. Under penalty of perjury, he has stated specific facts that establish his right to recovery under § 9-1-2. Because he suffered a loss through the theft of his jewelry, he is eligible to recover from the offender, identified in a previous criminal proceeding, double damages since, under § 11-41-2, Kowal's conviction renders him "guilty of larceny." In addition, on the issue of damages, Ludwig proffered his qualifications and his opinion regarding the worth of the gems.

Since the burden then shifted to defendant to counter plaintiff's sworn statement of fact, Kowal had an affirmative duty to respond with specific facts that would constitute a genuine issue for trial. Super.R.Civ.P. 56(e). The defendant's original reference to a plea of nolo contendere appeared in his motion to dismiss but it was not supported by any admissible evidence regarding the nature of the plea. Our cases clearly prescribe that an adverse party may not rest upon the mere allegations or denials set forth in his pleadings. Ardente v. Horan, 117 R.I. 254, 257, 366 A.2d 162, 164 (1976); Egan's Laundry & Cleaners, Inc. v. Community Hotel Corp. of Newport, R.I., 110 R.I. 719, 297 A.2d 348 (1972). See also 6 Moore's Federal Practice P 56.15(2) (2d ed. 1976); Kaplan, Amendments of the Federal Rules of Civil Procedure, 1961-1963 (II), 77 Harv.L.Rev. 801 (1964).

The defendant's affidavit fails to furnish even one particular fact indicating the existence of a genuine issue for trial. His attempt to explain away his negotiated plea is irrelevant. Indeed, he did not deny the fact of its occurrence nor that a factual basis existed for such plea. He sought only vaguely to suggest that if he did happen to possess any of plaintiff's property, he obtained such property legally. Kowal's general denials and oblique conclusory comments did not traverse plaintiff's sworn statements and did not raise an issue of fact which could prevent the award of plaintiff's summary judgment. Robin Construction Co. v. United States, 345 F.2d 610, 613 (3d Cir. 1965). Although it was not incumbent upon Kowal to disclose the totality of his evidence in the counteraffidavit, he should have demonstrated evidence of a substantial nature to dispute the material issues of fact attested to by plaintiff. Gallo v. National Nursing Homes, Inc., 106 R.I. 485, 489, 261 A.2d 19, 21 (1970); accord, O'Brion, Russell & Co. v. LeMay, 370 Mass. 243, 346 N.E.2d 861 (1976). As the record indisputably shows, defendant presented no counteraffidavit sufficient to raise a genuine issue of material fact.

Counsel's unsupported assertions, at the summary-judgment hearing, that Kowal had pleaded nolo contendere to the charge of receiving stolen goods were also to no avail. Significantly, counsel at this hearing had not served as defense counsel during the course of the prior criminal proceedings. Furthermore, although Rule 43 permits the court to admit and consider oral testimony at such a hearing, 6 Moore's Federal Practice, supra, PP 56.11(1.--6) and 56.11(1.--8), the unsworn statements of Kowal's counsel did not rise to the level of evidence; rather, they were representations and arguments to the court, not equivalent to sworn statements of fact at a summary-judgment hearing. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (unsworn statement does not meet requirement of Federal Rule of Civil Procedure 56(e)); Jones v. Menard, 559 F.2d 1282 (5th Cir.1977) (an unsworn report is not admissible at hearing on summary-judgment motion); X v. Brierley, 457 F.Supp. 350 (E.D.Pa.1978) (unsworn statements do not constitute proper Rule 56(e) affidavit).

In the event that Kowal had submitted evidence at the hearing on motion for summary judgment that he had pleaded nolo rather than guilty, it seems clear that this evidence would not have created an issue of fact for trial. Since a plea of nolo contendere followed by a sentence constitutes a conviction, Barker v. Almy, 20 R.I. 367, 39 A. 185 (1898), and since defendant was adjudged guilty by the court, the statutory requirement of establishment of guilt would have been met. Indeed our court has held that one who claims to be a victim of larceny and seeks statutory double damages may not prove guilt of larceny in the civil action except by proof of a criminal conviction or of an admission of guilt in a criminal proceeding. DaCosta v. Rose, 70 R.I. 163, 169, 37 A.2d 794, 797 (1944). In the light of this unique requirement, cases cited on the issue of admissibility of criminal convictions, including convictions based upon pleas of nolo contendere,...