Rowey v. Children's Friend and Service, C.A. No. 98-0136 (R.I. Super 12/12/2003)

• Court: Rhode Island Superior Court
• Writing for the Court: Darigan
• Decision Date: 12 December 2003
• Docket Number: C.A. No. 98-0136
• Citation: Rowey v. Children's Friend and Service, C.A. No. 98-0136 (R.I. Super 12/12/2003) (R.I. Super. 2003)
• Parties: JOSEPH L. ROWEY, Individually LINDA E. ROWEY, Individually, JOSEPH L. ROWEY and LINDA E. ROWEY as parents and next friend of LISA A. ROWEY, a minor, and JOSEPH L. ROWEY and LINDA E. ROWEY as parents and next friend of MEGHAN E. ROWEY, a minor v. CHILDREN'S FRIEND AND SERVICE, ALIAS JOHN DOE CORPORATION, CAMILLE HARDIMAN, ALIAS JANE DOE, JOHN DOE NOS. 1-20, and JANE DOE NOS. 1-20.

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JOSEPH L. ROWEY, Individually LINDA E. ROWEY, Individually, JOSEPH L. ROWEY and LINDA E. ROWEY as parents and next friend of LISA A. ROWEY, a minor, and JOSEPH L. ROWEY and LINDA E. ROWEY as parents and next friend of MEGHAN E. ROWEY, a minor v. CHILDREN'S FRIEND AND SERVICE, ALIAS JOHN DOE CORPORATION, CAMILLE HARDIMAN, ALIAS JANE DOE, JOHN DOE NOS. 1-20, and JANE DOE NOS. 1-20.

C.A. No. 98-0136

Superior Court of Rhode Island.

Filed: December 12, 2003

DECISION

DARIGAN, J.

Before this Court are the Motion for Summary Judgment of Children's Friend and Service (Defendant)¹ and the Motion for Partial Summary Judgment of Joseph L. Rowey, Linda E. Rowey, Meghan E. Rowey, and Lisa A. Rowey (Plaintiffs).² Also before this Court is Defendant's Motion to Strike the Affidavits of Joseph L. Rowey and Linda E. Rowey.

FACTS/TRAVEL

On or about September 11, 1981, Joseph L. Rowey (J. Rowey) and Linda E. Rowey (L. Rowey) (collectively, the Roweys), wishing to adopt a child, filled out an "Adoptive Home Application" (application) with Children's Friend and Service (CFS), an adoption agency. In their application, the Roweys noted, among other things, that they would not consider "a child who requires parents who can help him with the special needs he faces because of health, emotional problems or intellectual limitations." On April 30, 1982, CFS caseworker Camille Hardiman (Hardiman) wrote the Roweys, stating that CFS had approved their application and would contact them when a child became available. In December of that same year, Hardiman informed the Roweys that a child was available for adoption. This child, whom the Roweys later named Lisa A. Rowey (Lisa), was born on October 29, 1982.

CFS placed Lisa with the Roweys on December 7, 1982. Shortly thereafter, Dr. Monti, a pediatrician, assumed medical care of Lisa. During the placement period, Lisa proved difficult to comfort and exhibited behaviors such as banging her head and hands on the floor, holding her breath, and temper tantrums.

Throughout the adoption process, Hardiman met with and interviewed the Roweys on several occasions. Allegedly, Hardiman orally communicated to the Roweys certain information, including Lisa's natural mother's appearance and interests, that CFS did not know where Lisa's natural father was, that Lisa's natural mother had given birth to another baby who was probably two years old, and that Lisa was a full-term baby who had a normal and healthy birth. (Tr. of J. Rowey at 84-85, 90-91.) Prior to the adoption's finalization, the Roweys requested a written genetic history from CFS. (Tr. of L. Rowey at 71.) However, CFS did not provide the written genetic history to the Roweys prior to September 21, 1983, on which date the Roweys finalized Lisa's adoption.

On or about January 28, 1985, CFS sent the Roweys a document entitled "Genetic History, Lisa Ann Rowey" (Genetic History) which included two pieces of information previously unknown to the Roweys: (1) that Lisa's natural mother received no prenatal care or counseling and (2) that Lisa's natural father, at the time of agency contact, was incarcerated for breaking and entering. The Genetic History came unaccompanied by a cover letter or any form of explanation. Lisa, in the meantime, continued to suffer from temper tantrums and sometimes behaved violently towards family members.

The Roweys, concerned with Lisa's behaviors, began seeking additional advice. In 1990, they took Lisa to see Mary Mueller of Psychiatric Services, Inc., who noted that "better background information [on Lisa] would be possible." (Tr. of L. Rowey at 115.) In addition to Mary Mueller, Dr. Boulay, a psychologist, saw Lisa sometime in the late eighties or early nineties and likewise noted that the Roweys needed better information on Lisa. (Tr. of L. Rowey at 115.) The Roweys also sought the help of Dr. Savitsky, a psychiatrist, who in October of 1990 diagnosed Lisa with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder (ODD). Lisa was also diagnosed with Bipolar Disorder. Finally, in the early-to-mid nineties Lisa began seeing Dr. Hunt.

Prompted by a request from Dr. Hunt, J. Rowey asked CFS for additional information on Lisa's background in 1994. In response, CFS caseworker Tacy A. Hackey wrote the Roweys on February 15, 1995, revealing the following previously undisclosed information about Lisa's natural mother: (1) she engaged in occasional and very limited marijuana and alcohol use; (2) she did not realize that she was pregnant for the first three months of her pregnancy with Lisa and continued to take birth control pills; (3) she began taking diet pills when she started putting on weight on account of the pregnancy; (4) she smoked one to one-and-a-half packs of cigarettes per day during her pregnancy with Lisa; (5) she suffered from depression in the past, including during her first pregnancy and her pregnancy with Lisa; (6) she attempted suicide during her first pregnancy; (7) her brothers were known to "get into some trouble"; and (8) she frequently ran away from home. The letter further indicated that Lisa's birth father "probably uses drugs."

CFS submitted two documents to the Family Court, entitled "Summary" and "Adoption Report" and dated November 24, 1982 and September of 1983, respectively, containing information regarding Lisa's natural family that was not disclosed to the Roweys prior to the adoption and some of which was not made known to the Roweys until 1995. CFS also possessed two documents entitled "Assessement," one dated November 2, 1982 and the other dated January 6, 1983, both of which contained information concerning Lisa's natural family that was not disclosed to the Roweys prior to the adoption.

On January 12, 1998, Plaintiffs filed suit against Defendant. They assert the following causes of action: (1) negligent misrepresentation, (2) intentional misrepresentation, (3) negligent infliction of emotional distress, (4) intentional infliction of emotional distress, (5) negligence, (6) breach of fiduciary duty, and (7) breach of contract. Plaintiffs claim they have suffered great mental anguish, emotional distress, property damage, and bodily injury; that they have been forced to expend large sums of money for medical and psychiatric treatment; that they have lost opportunities for Lisa's proper medical and psychiatric treatment; and that Lisa was not properly diagnosed and/or treated for her psychological and developmental problems and lost opportunities for proper diagnosis, treatment and care.

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiffs move this Court to grant partial summary judgment as to the following issues: (1) Plaintiffs' claims have been timely filed because they were tolled until February of 1995; (2) Defendant had a duty to Plaintiffs; (3) Defendant breached its duty to Plaintiffs; (4) the Roweys may assert claims for Lisa's future care costs; and (5) Lisa is a proper plaintiff and, therefore, possesses standing in this case.³ Defendant, however, argues that Plaintiffs' Motion for Partial Summary Judgment is procedurally improper because Plaintiffs cannot utilize summary judgment to obtain rulings that various elements of their causes of action have been satisfied.

This Court finds that Plaintiffs' Motion for Partial Summary Judgment, with the exception of Plaintiffs' claims as to the statute of limitations and Lisa's standing, is procedurally improper. Superior Court Rule of Civil Procedure 56(c) provides that "[a] summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages." That is, "when there is a genuine issue as to damages, but not as to the ultimate liability of the nonmoving party, an interlocutory summary judgment is appropriate." Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2736. Since a genuine issue as to Defendant's liability exists, Rule 56(c) does not provide Plaintiffs with a procedural basis for their motion.

Furthermore, Superior Court Rule of Civil Procedure 56(d) states:

"If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion ... shall if practicable ascertain what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy .... Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly."

This rule "governs whenever it appears that the entire case cannot be disposed of on a motion for summary judgment and that a trial will be necessary." Norberg v. Warwick Liquors, Inc., 107 R.I. 129, 134, 265 A.2d 648, 651 (R.I. 1970). Where such circumstances exist, "the trial court should, if practicable, ascertain what material facts are actually and in good faith controverted, and ... should thereupon make an order establishing certain facts and leaving others for determination at the trial." Id.

As Superior Court Rule of Civil Procedure 56 is identical to the federal rule, this Court may look to cases interpreting the federal rule to explain the state rule. See Smith v. Johns-Manville Corp., 489 A.2d 336, 339 (R.I. 1985) (stating that "where the federal rule and our state rule of procedure are substantially similar, ... [the court] will look to the federal courts for guidance or interpretation of our own rule"). A number of courts interpreting Federal Rule of Civil Procedure 56(d) have held that it "does not authorize the entry of a judgment on part of a claim or the granting of partial relief." Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2737. Rather, "[t]he procedure prescribed in subdivision (d) is designed...