Zito v. Cassara
| Decision Date | 21 September 1971 |
| Docket Number | No. 1160-A,1160-A |
| Citation | 109 R.I. 112,281 A.2d 303 |
| Parties | Elena ZITO v. Evelyn CASSARA. ppeal. |
| Court | Rhode Island Supreme Court |
This cause is before us on the plaintiff's appeal from a judgment entered in the Superior Court granting the defendant's Super.R.Civ.P. 56(b) motion for summary judgment.
Since the only complaint considered by the trial justice was plaintiff's second amended complaint, 1 our brief recitation of plaintiff's contentions is limited to that document and plaintiff's supporting affidavit. The plaintiff's suit was precipitated by her dismissal from employment with the Rhode Island Hospital. The defendant was the plaintiff's supervisor at the hospital, having the power to hire and fire employees with the approval of the hospital. The plaintiff's complaint alleged certain misrepresentations by defendant, and that defendant's actions were based on malice and hatred toward plaintiff. The defendant thereafter filed a motion for summary judgment in accordance with Rule 56(b) along with supporting affidavits. After a hearing before a justice of the Superior Court, defendant's motion was granted, and judgment was entered accordingly.
In her appeal plaintiff argues that the trial justice erred in granting summary judgment, in that he limited his consideration to a possible claim for libel or slander. The plaintiff states that she has no objection to the trial justice's finding that the record failed to disclose a claim for libel or slander, but she contends that a prima facie case was presented based on defendant's tortious interference with plaintiff's advantageous contractual relationship with the hospital.
We affirm the ruling of the trial justice. Since plaintiff has no objection to the libel and slander aspect of the action, we shall treat the trial justice's finding on libel or slander as final. Under the peculiar circumstances of this case, we do not reach consideration of plaintiff's tortious interference claim, since plaintiff's counsel specifically admitted at the hearing that the complaint was not brought based on tortious interference, but was limited to libel or slander. When the trial justice reaffirmed this fact, no objection was made by counsel. During oral arguments, the following colloquy took place between the court and plaintiff's counsel.
'* * * it does not appear to me that the plaintiff has a cause of action, either in slander nor libel.
'Accordingly, the defendant's motion for summary judgment is granted. * * *
'To protect your rights, Mr. Attilli, it will be noted in the record that the plaintiff takes an objection or an exception to this ruling. * * *
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Volpe v. Fleet Nat. Bank
...Inc., 523 A.2d 864, 866 n. 2 (R.I.1987); Homar, Inc. v. North Farm Associates, 445 A.2d 288, 290 n. 1 (R.I.1982); Zito, 109 R.I. at 114, 281 A.2d at 304. It is well settled that a defendant may not raise new issues or advance new theories on appeal in order to obtain a reversal of the lower......
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Salvatore v. Palangio
...it serves no greater function.8 See Gormley v. Vartian , 121 R.I. 770, 777, 403 A.2d 256, 260 (1979) ; Zito v. Cassara , 109 R.I. 112, 113 n.1, 281 A.2d 303, 303 n.1 (1971).Mr. Palangio's second contention is also unavailing. He argues that the testimony adduced at trial "did not establish ......
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Erinakes v. Zahreddine, C.A.No. KC 2001-254 (R.I. Super 3/26/2009)
...for the original and supersedes it and the original no longer performs any function in the case. See Zito v. Cassara, 109 R.I. 112, 113 at footnote 1, 281 A.2d 303 (1971). Attempting to frame the Court's query as it relates to the Amended Complaint in another way, if the Court finds that th......
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Grieco v. Perry, 96-514-M
...be directed to it." 1 Kent, R.I. Civ. Prac., § 15.7 at 154 (1969). That interpretation of Rule 15 was adopted by us in Zito v. Cassara, 109 R.I. 112, 281 A.2d 303 (1971). Thus, the filing of the plaintiffs' second amended complaint rendered their first amended complaint a nullity, regardles......