Rule 11(a) Dismissal Denied When Appellant Timely Orders Transcripts and Clerk Delays Record Transmission Under Rule 11(b)

Louis Paolino v. Joseph Ferreira, Supreme Court of Rhode Island (Jan. 14, 2026)

I. Introduction

This appeal is the latest chapter of long-running environmental-contamination litigation between neighboring landowners in Cumberland, Rhode Island. Plaintiffs Louis Paolino and Marie Issa alleged that defendants Joseph Ferreira, the Joseph I. Ferreira Trust, J.F. Realty, LLC, and LKQ Corporation—operators/owners of an abutting automotive recycling facility—were responsible for contamination migrating onto plaintiffs’ property.

After plaintiffs won a first jury trial, the Supreme Court in Paolino v. Ferreira, 153 A.3d 505 (R.I. 2017), ordered a new trial due to erroneous exclusion of plaintiffs’ expert testimony. On retrial (January 2020), the jury largely found for defendants. Post-verdict, the Superior Court entered an amended judgment (June 30, 2021) for defendants on all counts, eliminating punitive damages.

The present appeal raised three clusters of issues:

• Appellate procedure: whether the appeal should be dismissed under Article I, Rule 11(a) for an almost three-year delay in transmitting the record.
• Trial fairness: whether alleged factual misstatements in opening statement required a more specific curative instruction.
• Discovery/expert testimony: whether allowing defendants’ expert Karen Beck to address portions of the Roseen report violated Superior Court Rule 33(c) (duty to supplement interrogatories) and constituted “trial by ambush.”

II. Summary of the Opinion

The Supreme Court affirmed the amended judgment for defendants. It:

• Declined to dismiss the appeal under Rule 11(a), emphasizing that plaintiffs timely filed the notice of appeal and timely ordered transcripts, and that reliance on the clerk’s Rule 11(b) duty to transmit a complete record was “certainly not baseless.”
• Held waived plaintiffs’ challenge to the adequacy of the curative instruction because they did not object to the instruction (nor move to pass the case), applying the raise-or-waive rule.
• Found no abuse of discretion in allowing limited expert testimony about the Roseen report, concluding there was no meaningful Rule 33(c) violation and no prejudicial surprise because the trial justice tightly constrained the testimony and relied on the witness’s prior federal-court testimony on the same subject.

III. Analysis

A. Precedents Cited

1. Record/transcript duties and dismissal for delay

• Small Business Loan Fund Corporation v. Gallant, 795 A.2d 531 (R.I. 2002): quoted for the broad proposition that “[t]he appellant, not the clerk, is responsible for the timely transmission of the record and the transcript.” The Court distinguished Gallant because it principally involved failure to order transcripts, whereas here transcripts were timely ordered and filed.
• In re Kyla C., 79 A.3d 846 (R.I. 2013) (mem.); Pelosi v. Pelosi, 50 A.3d 795 (R.I. 2012); Sentas v. Sentas, 911 A.2d 266 (R.I. 2006); Stepp v. Stepp, 898 A.2d 724 (R.I. 2006) (mem.); Daniel v. Cross, 749 A.2d 6 (R.I. 2000); Procopio v. PRM Concrete Corporation, 711 A.2d 650 (R.I. 1998) (mem.): cited by defendants to support dismissal, but the Court treated these cases as materially different because they involved untimely transcript ordering rather than a completed record not transmitted.
• Armstrong v. Armstrong, 115 R.I. 144, 341 A.2d 37 (1975): used to frame the purpose of dismissal for failure to transmit the record—“to settle abandoned appeals” and promote finality. The Court invoked Armstrong to reason that plaintiffs’ conduct did not reflect abandonment.
• Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745 (1968): cited for the overarching commitment to “the attainment of justice,” supporting the Court’s fairness-based refusal to penalize plaintiffs for a clerk-transmission breakdown.
• 731 Airport Associates, LP v. H & M Realty Associates, LLC ex rel. Leef, 799 A.2d 279 (R.I. 2002): cited to caution that appealing without full transcripts is “risky business,” reinforcing the Court’s emphasis on adequate record preparation even while it excused the transmission delay here.

2. Curative instructions, prejudice, and waiver

• Neri v. Nationwide Mutual Fire Insurance Company, 719 A.2d 1150 (R.I. 1998) and Brodeur v. Desrosiers, 505 A.2d 418 (R.I. 1986): supplied the standard for reviewing jury instructions—read “as a whole,” with reversal only if the jury “could have been misled to the resultant prejudice.”
• State v. Lassiter, 836 A.2d 1096 (R.I. 2003): emphasized that not every potentially prejudicial remark warrants a mistrial; if prejudice is curable, a timely and effective instruction is the remedy.
• Baker v. Women & Infants Hospital of Rhode Island, 268 A.3d 1165 (R.I. 2022): provided the three-part framework to assess improper comments (impropriety, influence, dissipation by instruction). Notably, the Court did not reach a full merits application because waiver controlled.
• Ryan v. Roman Catholic Bishop of Providence, 941 A.2d 174 (R.I. 2008) and Pollard v. Acer Group, 870 A.2d 429 (R.I. 2005): invoked for the “raise-or-waive” rule barring appellate review of issues not presented to the trial justice.
• State v. Clements, 83 A.3d 553 (R.I. 2014): applied as an analog: failure to object to the content of limiting/curative instructions waives appellate review of that content.

3. Expert testimony, discovery supplementation, and “trial by ambush”

• State v. Collins, 679 A.2d 862 (R.I. 1996): reaffirmed that admissibility of expert testimony is committed to the trial justice’s discretion; appellate review is for abuse of discretion.
• Neri v. Nationwide Mutual Fire Insurance Company, 719 A.2d 1150 (R.I. 1998): used again in the Rule 33(c) discussion; the Court reiterated that supplementation rules exist to prevent “trial by ambush.”
• Gormley v. Vartian, 121 R.I. 770, 403 A.2d 256 (1979): quoted for the core policy behind supplementation—cases should be decided on the merits, not surprise or maneuvering.

4. Litigation finality

• Arena v. City of Providence, 919 A.2d 379 (R.I. 2007) and Northern Trust Co. v. Zoning Board of Review of Town of Westerly, 899 A.2d 517 (R.I. 2006) (mem.): cited in closing to underscore the Court’s institutional concern for ending protracted litigation once a lawful result is reached.

B. Legal Reasoning

1. Procedural holding: Rule 11(a) dismissal is not automatic when the record was complete but not transmitted

The opinion’s most “precedent-setting” feature is its refusal to treat a long delay in record transmission as necessarily fatal when: (i) the notice of appeal is timely, (ii) transcripts are timely ordered and filed, and (iii) the appellant plausibly relied on Rule 11(b)’s directive that the trial-court clerk “shall transmit” the record once complete.

The Court reconciled two points that can be in tension:

• Appellant responsibility (language from Small Business Loan Fund Corporation v. Gallant)—counsel must ensure that the steps required for transmission occur.
• Clerk’s mandatory duty (Rule 11(b)’s text)—when the record is complete, the clerk “shall transmit it.”

Rather than choosing a rigid rule, the Court evaluated the purpose of dismissal for delay—disposing of “abandoned appeals” (Armstrong v. Armstrong)—and found no abandonment. It also relied on fairness and “attainment of justice” principles (Wilkinson v. Harrington) to avoid imposing the ultimate sanction (dismissal) where the delay could reasonably be attributed to administrative non-transmission after record completion.

2. Substantive holding: challenge to curative instruction waived

Plaintiffs objected to statements in opening, prompting the trial justice to give an instruction emphasizing: (i) openings are not evidence, (ii) other federal cases are not before the jury, and (iii) the reason for the age/delay of the case is irrelevant. Because plaintiffs did not object to the instruction’s content afterward, the Supreme Court applied raise-or-waive (Ryan v. Roman Catholic Bishop of Providence; Pollard v. Acer Group) and treated the challenge as unpreserved, consistent with State v. Clements.

The doctrinal message is clear: once the court addresses an asserted impropriety with a curative instruction, a party who believes the instruction is insufficient must timely say so (and, where appropriate, move to pass the case) to preserve appellate review.

3. Substantive holding: no prejudicial Rule 33(c) violation where expert rebuttal is narrowly limited and consistent with prior disclosed testimony

Plaintiffs argued that defendants failed to supplement interrogatory answers to indicate their expert would rely on the Roseen report (which post-dated her own report). The trial justice restricted the testimony to whether the expert agreed with the specific portion(s) of the Roseen report that plaintiffs’ expert had addressed, after reviewing the federal-trial transcript and determining that similar testimony had previously been given.

On review for abuse of discretion (State v. Collins), the Supreme Court focused on the core policy of Rule 33(c): preventing surprise “trial by ambush” (Neri v. Nationwide Mutual Fire Insurance Company; Gormley v. Vartian). The Court found no ambush because (i) the testimony was constrained, (ii) it served as rebuttal to plaintiffs’ expert testimony, and (iii) it tracked prior federal testimony—reducing the risk of unfair surprise.

C. Impact

1. Appellate practice: a more contextual approach to Rule 11(a) dismissal

The opinion signals that Rule 11(a) dismissal is not purely mechanical in clerk-transmission-delay scenarios. Where an appellant has: timely appealed, timely ordered transcripts, and taken reasonable steps to enable transmission, the Court may treat dismissal as inconsistent with Rule 11’s structure (especially Rule 11(b)) and with the doctrine’s purpose (clearing abandoned appeals).

At the same time, the opinion reinforces a practical best practice: counsel should document written follow-ups with the clerk to avoid later disputes about diligence—an implicit roadmap for demonstrating “non-abandonment” and reasonableness if delay becomes contested.

2. Trial practice: preservation remains decisive

Even if counsel believes an opponent misstated facts in opening, this case highlights that appellate relief often turns less on the alleged impropriety than on whether counsel preserved objections to the remedy (the curative instruction) once given.

3. Expert/discovery: tailored remedial management can defeat “ambush” claims

The Court effectively endorsed a trial-management technique: when a late-arising document/report becomes relevant through another witness, the trial justice may allow constrained rebuttal use—particularly where prior proceedings show the topic is not genuinely new—thereby balancing truth-seeking with anti-surprise protections.

IV. Complex Concepts Simplified

• “Transmitting the record” (Rule 11): The “record” is what the appellate court reviews—pleadings, exhibits, orders, and transcripts. Rule 11(a) sets timing expectations; Rule 11(b) says the trial-court clerk “shall transmit” the complete record.
• Raise-or-waive: If a party does not clearly raise an issue with the trial judge at the right time, the party generally cannot argue it on appeal. Here, plaintiffs did not object to the content of the curative instruction, so the Supreme Court treated the issue as waived.
• Curative instruction: A judge’s directive to the jury intended to neutralize possible prejudice (e.g., reminding that opening statements are not evidence).
• Rule 33(c) supplementation: If interrogatory answers become incomplete or incorrect, they must be amended within a reasonable time (and no later than 30 days before trial, absent leave). The rule’s aim is to prevent surprise and allow fair trial preparation.
• “Abuse of discretion” review: Many trial-management rulings (including expert testimony limits) are upheld unless the trial judge’s decision was unreasonable or legally improper.
• Rule 59(e) motion to amend judgment: A post-trial motion asking the trial court to alter or amend the judgment; here it resulted in an amended judgment eliminating punitive damages.

V. Conclusion

Louis Paolino v. Joseph Ferreira does two important things. First, it clarifies that a prolonged delay in transmitting the appellate record will not necessarily trigger Rule 11(a) dismissal where the appellant timely ordered transcripts, the record was complete, and non-transmission plausibly lay with the clerk despite Rule 11(b)’s “shall transmit” command—especially absent signs of abandonment. Second, it reaffirms two durable trial principles: appellate courts will enforce issue preservation rigorously (curative-instruction challenges must be timely made), and alleged discovery-supplementation problems will be evaluated through the lens of prejudice and surprise, with carefully limited rebuttal testimony often sufficient to avoid a new trial.