Russell v. Kalian
| Decision Date | 28 April 1980 |
| Docket Number | No. 79-220-A,79-220-A |
| Citation | 414 A.2d 462 |
| Parties | Elsie RUSSELL v. Robert KALIAN et al. ppeal. |
| Court | Rhode Island Supreme Court |
This is a Superior Court civil action in which the plaintiff, seventy-year-old Elsie Russell (Elsie), seeks damages and equitable relief against her landlord, Robert Kalian (Kalian), and Carmine Pari (Pari), a constable hired by Kalian. The appeal is brought by Kalian and Pari.
On July 13, 1977, Elsie returned to her apartment at 11 Croyland Road in Providence, where she discovered Kalian and a U-Haul truck in front of the building. When Elsie asked Kalian who was moving in, he responded, Elsie immediately went up to her apartment and encountered Pari, who introduced himself as a "sheriff" and who showed Elsie what was presumably a writ of execution for possession. Elsie stood by and witnessed the removal of most, if not all, of her worldy belongings, including the navy uniforms of her sons and deceased husband, the family Bible, her daughter's wedding gown, and her dentures. Kalian conditioned the return of this property on payment of $350 for moving expenses.
In her complaint Elsie alleged that the execution that Kalian obtained against her following a default judgment for possession of her Croyland Road apartment had expired a month prior to the eviction. Her request for damages and equitable relief against both Kalian and Pari was based upon a claim of trespass and the wrongful removal of her property. She also sought damages solely against Kalian on the theory that he wrongfully held her property in violation of G.L.1956 (1969 Reenactment) §§ 34-18-9 and 34-18-9.1 (1979 Supp.) by conditioning its return on the payment of $350 without obtaining court approval that this demand figure represented reasonable and lawful moving expenses.
Elsie's motion for partial summary judgment on the issue of Kalian's and Pari's liability on both claims for relief was granted, and a hearing on the assessment of damages ensued. At the hearing, Elsie testified that it was not until the first week of July 1977 that she learned that her apartment had to be vacated in a week. When Kalian, Pari, and the movers arrived at the apartment, Elsie's belongings were already wrapped and packaged in anticipation of her move to a nearby apartment on the following day. The trial justice found that on the day of the eviction, Kalian and Pari had actual knowledge that Elsie was preparing to move the next day. He also determined that Kalian and Pari had unlawfully operated under an execution invalid on its face since the seizure of Elsie's property occurred thirty days after the execution had expired. At the close of the testimony, the trial justice afforded Kalian an opportunity to return all of Elsie's property, but he declined to do so under a "claim of right." Elsie was awarded $510 in compensatory damages, $5,000 in punitive damages, and replevin for various priceless possessions.
Before proceeding to the merits of the appeal, we must review a procedural "muff." An examination of the record reveals that the appeal in this case was filed eight days following the trial justice's oral decision but seven days before the actual entry of judgment. In support of their argument that the case should not be dismissed for failure to comply with Super.R.Civ.P. 58(a) and Supreme Court Rule 4(a), Kalian and Pari argue that their appeal was filed in reliance on a copy of the formal order that had been served on them the day before their appeal was filed. In the interests of justice and to avoid undue hardship, we do not regard this minor procedural defect as fatal. We shall treat the appeal as if it had been timely filed after the entry of judgment. Beauvais v. Notre Dame Hospital, R.I., 387 A.2d 689 (1978); see Malinou v. Kiernan, 105 R.I. 299, 251 A.2d 530 (1969).
Initially, Kalian and Pari contend that the clerk of the Sixth Division District Court acted contrary to the provisions of G.L.1956 (1969 Reenactment) § 9-25-21 in entering the return date of June 13, 1977, upon the execution for possession of Elsie's apartment. Since the execution was issued on May 23, 1977, it was valid for twenty days. According to Kalian and Pari, this alleged error would render the execution irregular but not void because the statute affords a successful plaintiff a three-month period during which the execution can be served.
This argument is not...
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State v. Rodriguez
...the premature filing of a notice of appeal." McBurney v. The GM Card, 869 A.2d 586, 589 n. 3 (R.I.2005) (citing Russell v. Kalian, 414 A.2d 462, 464 (R.I.1980)). Accordingly, defendant's appeal is properly before 7. Rhode Island ratified the Constitution on May 29, 1790. 8. Some courts have......
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Hudson v. GEICO Ins. Agency, Inc.
...however, will treat the premature notice of appeal as if it had been timely filed after the judgment was entered. See Russell v. Kalian , 414 A.2d 462, 464 (R.I. 1980) (citing Beauvais v. Notre Dame Hospital , 120 R.I. 271, 387 A.2d 689 (1978) ).3 In Butzberger v. Foster , 151 Wash.2d 396, ......
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State v. Long
...719, 726 (1983). A party who fails to assert his specific objections is deemed to have waived his rights on appeal. Russell v. Kalian, R.I., 414 A.2d 462, 465 (1980). We find, however, that defendants have not waived their rights on appeal regarding the first factor of the Fosher test, whet......
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Furtado v. Laferriere
...Land Co., 600 A.2d 722, 723 & n. 1 (R.I.1991); Brenner Associates, Inc. v. Rousseau, 537 A.2d 120, 122 (R.I.1988); Russell v. Kalian, 414 A.2d 462, 464 (R.I. 1980). Recent decisions of this Court, however, highlight the distinction between an entry of summary judgment and an entry of final ......