Nedder v. Rhode Island Hosp. Trust Nat. Bank

• Decision Date: 18 May 1983
• Docket Number: No. 80-314-A,80-314-A
• Citation: 459 A.2d 960
• Parties: Thomas NEDDER v. RHODE ISLAND HOSPITAL TRUST NATIONAL BANK. ppeal.
• Court: Rhode Island Supreme Court

Page 960

459 A.2d 960

Thomas NEDDER v. RHODE ISLAND HOSPITAL TRUST NATIONAL BANK.

No. 80-314-Appeal.

Supreme Court of Rhode Island.

May 18, 1983.

Alfred Factor, Providence, for plaintiff.

John F. Dolan, Providence, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on the plaintiff's appeal from summary judgment entered against him by a justice of the Superior Court. The plaintiff had filed a four-count complaint against the Rhode Island Hospital Trust National Bank (the bank) alleging false arrest, slander, libel, and assault and battery. In addition to traversing the allegations in these four counts, the defendant filed a special defense of general release. It was by virtue of the presentation of the general release in the context of a motion for summary judgment that the trial justice entered judgment for the defendant. We affirm. The facts, as somewhat sketchily disclosed to the trial justice, were as follows.

The plaintiff was suspected by officers of the bank of conspiring with a bank employee in the granting of loans without meeting criteria normally required for the extension of credit. On April 14, 1978, plaintiff was seen at a branch office of the bank in Cumberland. An employee of the bank notified the Cumberland police that plaintiff was in the bank and that he might be armed and dangerous. The Cumberland police responded and arrested plaintiff, searched him for weapons, found none, and took him in handcuffs to the police station.

Thereafter, the Cumberland police determined they had insufficient evidence upon which to base a prosecution and offered to release plaintiff but requested that he execute a document that released "any and all persons or person in any way connected with my said arrest and detention" from "all and all manner of actions and causes of action which against the same I ever had, now have or ought to have for or by any reasons or means of said arrest and detention." The plaintiff executed this general release and was promptly freed from custody.

He subsequently brought action against the bank and a process of discovery ensued, including depositions of plaintiff and various officers and employees of the bank. Pursuant to the provisions of Rule 36 of the Superior Court Rules of Civil Procedure, the bank requested plaintiff to admit the genuineness of a copy of the release executed by plaintiff at the Cumberland police station on April 14, 1978. By virtue of his failure to respond to this request, it was deemed to be admitted. The bank's motion for summary judgment was accompanied by a copy of the release referred to in the request for admission. The plaintiff responded to the motion for summary judgment merely by filing an objection. The objection was not buttressed by an affidavit setting forth matters of fact in accordance with Rule 56(e). As we stated in Ludwig v. Kowal, R.I., 419 A.2d 297, 301 (1980), when a party who seeks summary judgment has established a sufficient basis from affidavits, pleadings, and discovery materials in order to prevail on such motion, the burden shifts to the opponent of the motion to respond with specific facts that would constitute a genuine issue for trial. Such 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., 110 R.I. 719, 297 A.2d 348 (1972). Further, counsel's unsupported assertions at the summary-judgment hearing do not serve as substitutes for affidavits based upon personal knowledge or reference to appropriate discovery materials such as answers to interrogatories, depositions or Rule 36 admissions. Ludwig v. Kowal, R.I., 419 A.2d 297 (1980).

In the case at bar trial counsel did not call the trial justice's attention to depositions or other discovery materials. He merely argued the insufficiency of the release as a matter of law. Faced only with this challenge, the trial court determined that there was no genuine issue of material fact and decided that the release was a bar to the instant action.

Appellate counsel ¹ argues ably and persuasively that reference to the depositions on file in the case would have disclosed factual issues that would have caused summary judgment to have been an improper vehicle for determination of the case. See Lennon v. MacGregor, R.I., 423 A.2d 820 (1980); Westinghouse Broadcasting Co. v. Dial Media, Inc., R.I., 410 A.2d 986 (1980); Julian v. Zayre Corp., 120 R.I. 494, 388 A.2d 813 (1978). However, all these contentions are set forth in this court for the first time.

It must be recognized that a Superior Court justice presiding at a motion calendar is required to pass upon scores of controversies each day. In many instances the motion justice will be presented with a file...