Morel v. Napolitano

• Decision Date: 06 May 2013
• Docket Number: No. 2011–312–Appeal.,2011–312–Appeal.
• Citation: 64 A.3d 1176
• Parties: Elizabeth MOREL v. Stephen NAPOLITANO, Alias in His Capacity as Treasurer for the City of Providence.
• Court: Rhode Island Supreme Court

64 A.3d 1176

Elizabeth MOREL

v.Stephen NAPOLITANO, Alias in His Capacity as Treasurer for the City of Providence.

No. 2011–312–Appeal.

Supreme Court of Rhode Island.

May 6, 2013.

Robert A. D'Amico, II, Esq., Providence, for Plaintiff.

Rebecca M. McCormick, Esq., Providence, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Chief Justice SUTTELL, for the Court.

The plaintiff, Elizabeth Morel, filed a civil action against the City of Providence (city) ¹ for personal injuries she suffered after a school bus that she was operating fell into a sinkhole on a city roadway. A jury trial was held in the Superior Court, which resulted in a verdict finding that the defendant was negligent and awarding the plaintiff $59,239 in damages. On appeal, the city argues that the trial justice erred “in admitting affidavits that failed to conform to the express requirement of [ G.L.1956 § 9–19–27] that they must be sworn to under penalty of perjury.” The city additionally argues that the trial justice clearly abused her discretion by preventing it “from pursuing its well disclosed and announced intention to cross-examine the [p]laintiff during trial as to her receipt of workers['] compensation” benefits. This case came before the Supreme Court pursuant to an order directing the parties to show cause why the issues raised in this appeal should not summarily be 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 affirm the judgment of the Superior Court.

IFacts and Procedural History

On April 5, 2006, Morel was operating a school bus on Fairview Street in the city of Providence when the front wheels of the bus fell into a trench. Evidence was presented at trial that employees of the Providence Water Supply Board (Providence Water), a public utility and agency of the city, had installed a temporary patch in the road after completing a “remove and install service” on the pipes that ran underneath the area; however, the trench had “washed out” due to a heavy rainfall, causing the patch to fail.

Morel filed a complaint against the city on October 20, 2006. In an amended complaint filed on December 1, 2006, Morel alleged that the city, through Providence Water, had been negligent, careless, and reckless when it excavated the roadway. A jury trial was held on March 1–4, 2010, and a verdict was returned for Morel. A judgment was entered on March 4, 2010, awarding Morel $59,239. Subsequently, the trial justice awarded Morel costs in the amount of $5,738.45. The city filed a timely notice of appeal.

IIStandard of Review

This Court reviews questions of statutory construction and interpretation de novo. Mendes v. Factor, 41 A.3d 994, 1002 (R.I.2012). When the statutory language is clear and unambiguous, we give the words their plain and ordinary meaning. Id. Therefore, “when we examine an unambiguous statute, there is no room for statutory construction and we must apply the statute as written.” Mutual Development Corp. v. Ward Fisher & Co., LLP, 47 A.3d 319, 328 (R.I.2012) (quoting In re Harrison, 992 A.2d 990, 994 (R.I.2010)). Further, “[i]t is well established that the admissibility of evidence is within the sound discretion of the trial justice, and this Court will not interfere with the trial justice[']s decision unless a clear abuse of that discretion is apparent.” Notarantonio v. Notarantonio, 941 A.2d 138, 149 (R.I.2008) (quoting DiPetrillo v. Dow Chemical Co., 729 A.2d 677, 690 (R.I.1999)).

IIIDiscussion

AThe Affidavits

On appeal, the city argues that, during the trial, Morel was permitted to introduce medical records that were not properly authenticated in accordance with the required procedure set forth in § 9–19–27.² Specifically, the city takes issue with the fact that the affidavits lack the exact recitation of the statutory language, “subscribed to and sworn under the penalties of perjury.”

Morel counters that “[t]he fact that the words ‘under the penalties of perjury’ were not used in no way make[ ] the affidavit[s] void” because “[t]here is no question that each of the affidavits w[as] signed and sworn to before a valid notary,” as each expressly states: “[Now comes] the undersigned, being duly sworn, on oath, deposes and states as follows * * *,” and each includes the notary's statement that the affidavit was “[s]ubscribed and sworn before” the notary by the affiant. Further, Morel contends that the words “under the penalties of perjury” are not used in depositions, when a person is sworn in during court proceedings, or within answersto interrogatories, nor are they required within an affidavit supporting a search warrant or by the perjury statute, G.L.1956 § 11–33–1. Lastly, she points out that “[§ ] 9–19–27 expressly allows for the calling of any of the affiants by an opposing party” so that they may be questioned “as to whether the information contained in the affidavits was accurate,” but she notes that the city did not do so.

This Court has stated that “[s]ection 9–19–27 provides a mechanism for admission of opinion evidence through documentation, without the need for expert testimony.” Boscia v. Sharples, 860 A.2d 674, 679 (R.I.2004). Although the statutory language clearly requires that the documentary evidence be “subscribed and sworn to under the penalties of perjury,” it does not expressly require that this exact phrase be used. The General Assembly, in at least two other instances, has mandated by statute that certain documents include the phrase “under penalties of perjury.” SeeG.L.1956 § 23–19–13.1(c) (“The certification * * * shall be under oath, stating that the oath is made under the pains and penalties of perjury.”); G.L.1956 § 44–40–5 (“The [tax] return shall contain, or be verified by, a written declaration that it is made under penalties of perjury.”). Such is not the case here. The language used in § 9–19–27(b), “subscribed and sworn to under the penalties of perjury,” creates the requirement that the documents be sworn to under oath. Black's Law Dictionary defines the word “swear” as “[t]o take an oath,” and the word “oath” as “[a] solemn declaration * * * that one's statement is true,” the legal effect of which is to “subject the person to penalties for perjury if the testimony is false.” Black's Law Dictionary 1585, 1176 (9th ed.2009). The word “perjury” is defined as “[t]he act or an instance of a person's deliberately making material false or misleading statements while under oath.” Id. at 1254.

This Court has previously stated that “[o]ur legal system treats with great seriousness a statement that has been sworn to before a notary public. Statements sworn to in affidavits can have immensely serious consequences.” Scarborough v. Wright, 871 A.2d 937, 939 n. 4 (R.I.2005); see also In re Testa, 489 A.2d 331, 335 (R.I.1985) (“Because the affidavit was sworn to before a notary public, the statements asserted therein were regarded as truthful and the document is therefore available as evidence of the facts stated.”). The potential consequence of knowingly swearing to an untruthful statement made within an affidavit is a conviction for perjury. Section 11–33–1(a) (“Every person under oath or affirmation who knowingly makes any false material declaration or makes or uses any other information * * * knowing it contains any false material declaration, shall be deemed guilty of perjury.”). Therefore, any statement, whether oral or written, when given under oath, is sworn to under the penalties of perjury.

The city attempts to support its argument by citing to Scarborough, 871 A.2d at 939 (holding that the defendant's affidavit did not sufficiently satisfy the requirements of Rule 56 of the Superior Court Rules of Civil Procedure because of the “plaintiff's failure to have abided by the clear and specific language of Rule 56”),³and Chrysler First Financial Services Corp. v. Van Daam, 604 A.2d 339, 341 n. 1 (R.I.1992) (noting that the unsigned statement presented by the defendant did not meet the requirements of an affidavit because it was “devoid of an acknowledgment that the assertions made within [were] sworn to before a notary”). The city's reliance upon these cases is misplaced, however.

In Scarborough, 871 A.2d at 938, the plaintiff presented an affidavit that was not notarized and, therefore, we deemed it not to constitute a sufficient affidavit for purposes of Rule 56. This Court defined an affidavit to be “a written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.” Id. at 939 (quoting State v. Haase, 247 Neb. 817, 530 N.W.2d 617, 618 (1995)). In Van Daam, 604 A.2d at 341 n. 1, we said that an unsworn statement was not sufficient to meet the requirements of an affidavit because the document “merely contain[ed] the acknowledgment of a notary that [the defendant's] signature [was] his free act and deed” and was “devoid of an acknowledgment that the assertions made within are sworn to before a notary.” Here, the affidavits that Morel presented were clearly signed in the presence of a notary by each affiant and each expressly states that the truth of the factual statements within each affidavit was sworn to under oath. Because the affidavits were subscribed and sworn to under oath in the presence of a notary, we are of the opinion that the legislative requirements contained in § 9–19–27 have been met, and that the trial justice did not err in admitting the affidavits into evidence at the trial.⁴

BWorkers' Compensation Benefits

On appeal, the city also contends that the trial justice clearly abused her discretion by preventing it “from pursuing its well disclosed and announced intention to...