findings made hearing in Rhode Island

2015The majority acknowledges, that when this Court reviews “a ruling made by a hearing justice with respect to a motion in a civil case, this Court will ‘accord deferential consideration to the findings made by the hearing justice, and in the absence of our being able to determine that he [or she] was clearly wrong, or had misconceived or overlooked material evidence, we will not disturb his [or her] findings.’” BBS Citizens Bank, N.A. v. Issler, 21 A.3d 293, 297-98 (R.I.2011) (quoting City of Providence v. Employee Retirement Board of Providence, 749 A.2d 1088, 1093 (R.I.2000)).

2015The majority acknowledges, that when this Court reviews “a ruling made by a hearing justice with respect to a motion in a civil case, this Court will ‘accord deferential consideration to the findings made by the hearing justice, and in the absence of our being able to determine that - 17 - he [or she] was clearly wrong, or had misconceived or overlooked material evidence, we will not disturb his [or her] findings.’” RBS Citizens Bank, N.A. v. Issler, 21 A.3d 293, 297-98 (R.I. 2011) (quoting City of Providence v. Employee Retirement Board of Providence, 749 A.2d 1088, 1093 (R.I. 2000)).

2015The majority acknowledges, that when this Court reviews “a ruling made by a hearing justice with respect to a motion in a civil case, this Court will ‘accord deferential consideration to the findings made by the hearing justice, and in the absence of our being able to determine that he [or she] was clearly wrong, or had misconceived or overlooked material evidence, we will not disturb his [or her] findings.’” BBS Citizens Bank, N.A. v. Issler, 21 A.3d 293, 297-98 (R.I.2011) (quoting City of Providence v. Employee Retirement Board of Providence, 749 A.2d 1088, 1093 (R.I.2000)).

2015The majority acknowledges, that when this Court reviews “a ruling made by a hearing justice with respect to a motion in a civil case, this Court will ‘accord deferential consideration to the findings made by the hearing justice, and in the absence of our being able to determine that - 17 - he [or she] was clearly wrong, or had misconceived or overlooked material evidence, we will not disturb his [or her] findings.’” RBS Citizens Bank, N.A. v. Issler, 21 A.3d 293, 297-98 (R.I. 2011) (quoting City of Providence v. Employee Retirement Board of Providence, 749 A.2d 1088, 1093 (R.I. 2000)).

2011II Standard of Review [1,2] When reviewing a ruling made by a hearing justice with respect to a *298 motion in a civil case, this Court will “accord deferential consideration to the findings made by the hearing justice, and in the absence of our being able to determine that he [or she] was clearly wrong, or had misconceived or overlooked material evidence, we will not disturb his [or her] findings.” City of Providence v. Employee Retirement Board of Providence, 749 A.2d 1088, 1093 (R.I.2000); see also State v. Quinlan, 921 A.2d 96, 105 (R.I.2007).

2011We give the same degree of deference to a hearing justice’s ruling on “mixed questions of law and fact, as well as [to] the inferences and conclusions drawn from the testimony and evidence.” Associated Builders & Contractors of Rhode Island, Inc. v. Department of Administration, 787 A.2d 1179, 1184 (R.I.2002) (brackets in original) (internal quotation marks omitted); see also Narragansett Electric Co. v. Carbone, 898 A.2d 87, 97 (R.I.2006).

2011We give the same degree of deference to a hearing justice’s ruling on “mixed questions of law and fact, as well as [to] the inferences and conclusions drawn from the testimony and evidence.” Associated Builders & Contractors of Rhode Island, Inc. v. Department of Administration, 787 A.2d 1179, 1184 (R.I.2002) (brackets in original) (internal quotation marks omitted); see also Narragansett Electric Co. v. Carbone, 898 A.2d 87, 97 (R.I.2006).

2007Milardo v. Coastal Resources Management Council , 434 A.2d 266 , 270 (1981); Millerick v. Fascio , 120 R.I. at 9 , 384 A.2d at 601 ; contra Johnson v. Guhl , 91 F.Supp.2d 754 , 778 (D.N.J. 2000) (where "the corpus of the trust [was] considered a transfer of assets for less than fair market value, which would normally trigger a look-back period, but in this case, [did] *Page 17 not because it was uncontested that the transfer was for the `sole benefit of' the community spouse").

2007Milardo v. Coastal Resources Management Council , 434 A.2d 266 , 270 (1981); Millerick v. Fascio , 120 R.I. at 9 , 384 A.2d at 601 ; contra Johnson v. Guhl , 91 F.Supp.2d 754 , 778 (D.N.J. 2000) (where "the corpus of the trust [was] considered a transfer of assets for less than fair market value, which would normally trigger a look-back period, but in this case, [did] *Page 17 not because it was uncontested that the transfer was for the `sole benefit of' the community spouse").

2003This Court has described a nonconforming use as "a particular use of property that does not conform to the zoning restrictions applicable to that property but which use is protected because it existed lawfully before the effective date of the enactment of the zoning restrictions and has continued unabated since then.” RICO Corp. v. Town of Exeter, 787 A.2d 1136, 1144 (R.I.2001) (RICO I) (citing Town of Scituate v. O’Rourke, 103 R.I. 499, 503 , 239 A.2d 176, 179 (1968)). 4 .

2003This Court has described a nonconforming use as "a particular use of property that does not conform to the zoning restrictions applicable to that property but which use is protected because it existed lawfully before the effective date of the enactment of the zoning restrictions and has continued unabated since then.” RICO Corp. v. Town of Exeter, 787 A.2d 1136, 1144 (R.I.2001) (RICO I) (citing Town of Scituate v. O’Rourke, 103 R.I. 499, 503 , 239 A.2d 176, 179 (1968)). 4 .

2003This Court has described a nonconforming use as "a particular use of property that does not conform to the zoning restrictions applicable to that property but which use is protected because it existed lawfully before the effective date of the enactment of the zoning restrictions and has continued unabated since then.” RICO Corp. v. Town of Exeter, 787 A.2d 1136, 1144 (R.I.2001) (RICO I) (citing Town of Scituate v. O’Rourke, 103 R.I. 499, 503 , 239 A.2d 176, 179 (1968)). 4 .

2001“However, ‘the ultimate determination concerning whether [a defendant’s] constitutional rights have been infringed must be reviewed de novo.’ ” Simpson, 769 A.2d at 1265 (quoting Powers v. State, 734 A.2d 508, 514 (R.I.1999) (citing Ornelas v. United States, 517 U.S. 690, 696-97 , 116 S.Ct. 1657, 1661-62 , 134 L.Ed.2d 911, 919 (1996); Broccoli v. Moran, 698 A.2d 720, 725 (R.I.1997); Mastracchio v. Moran, 698 A.2d 706, 710 (R.I.1997))).

2001“However, ‘the ultimate determination concerning whether [a defendant’s] constitutional rights have been infringed must be reviewed de novo.’ ” Simpson, 769 A.2d at 1265 (quoting Powers v. State, 734 A.2d 508, 514 (R.I.1999) (citing Ornelas v. United States, 517 U.S. 690, 696-97 , 116 S.Ct. 1657, 1661-62 , 134 L.Ed.2d 911, 919 (1996); Broccoli v. Moran, 698 A.2d 720, 725 (R.I.1997); Mastracchio v. Moran, 698 A.2d 706, 710 (R.I.1997))).

2001“However, ‘the ultimate determination concerning whether [a defendant’s] constitutional rights have been infringed must be reviewed de novo.’ ” Simpson, 769 A.2d at 1265 (quoting Powers v. State, 734 A.2d 508, 514 (R.I.1999) (citing Ornelas v. United States, 517 U.S. 690, 696-97 , 116 S.Ct. 1657, 1661-62 , 134 L.Ed.2d 911, 919 (1996); Broccoli v. Moran, 698 A.2d 720, 725 (R.I.1997); Mastracchio v. Moran, 698 A.2d 706, 710 (R.I.1997))).

2001“However, ‘the ultimate determination concerning whether [a defendant’s] constitutional rights have been infringed must be reviewed de novo.’ ” Simpson, 769 A.2d at 1265 (quoting Powers v. State, 734 A.2d 508, 514 (R.I.1999) (citing Ornelas v. United States, 517 U.S. 690, 696-97 , 116 S.Ct. 1657, 1661-62 , 134 L.Ed.2d 911, 919 (1996); Broccoli v. Moran, 698 A.2d 720, 725 (R.I.1997); Mastracchio v. Moran, 698 A.2d 706, 710 (R.I.1997))).

2001“However, ‘the ultimate determination concerning whether [a defendant’s] constitutional rights have been infringed must be reviewed de novo.’ ” Simpson, 769 A.2d at 1265 (quoting Powers v. State, 734 A.2d 508, 514 (R.I.1999) (citing Ornelas v. United States, 517 U.S. 690, 696-97 , 116 S.Ct. 1657, 1661-62 , 134 L.Ed.2d 911, 919 (1996); Broccoli v. Moran, 698 A.2d 720, 725 (R.I.1997); Mastracchio v. Moran, 698 A.2d 706, 710 (R.I.1997))).

2001Following the hearing, the hearing justice dismissed the application. 1 The defendant came before this Court to contest the dismissal of his application, pursuant to § 10-9.1-9, which provides that “[a] final judgment entered in a proceeding brought under this chapter shall be appealable to the Supreme Court.” The findings made by a hearing justice, pursuant to a hearing for post-conviction relief, “ ‘are entitled to stand undisturbed on appeal in the absence of clear error or a showing that material evidence was overlooked or misconceived.’ ” Simpson v. State, 769 A.2d 1257, 1265 (R.I.2001) (

2001“However, ‘the ultimate determination concerning whether [a defendant’s] constitutional rights have been infringed must be reviewed de novo.’ ” Simpson, 769 A.2d at 1265 (quoting Powers v. State, 734 A.2d 508, 514 (R.I.1999) (citing Ornelas v. United States, 517 U.S. 690, 696-97 , 116 S.Ct. 1657, 1661-62 , 134 L.Ed.2d 911, 919 (1996); Broccoli v. Moran, 698 A.2d 720, 725 (R.I.1997); Mastracchio v. Moran, 698 A.2d 706, 710 (R.I.1997))).

2001Following the hearing, the hearing justice dismissed the application. 1 The defendant came before this Court to contest the dismissal of his application, pursuant to § 10-9.1-9, which provides that “[a] final judgment entered in a proceeding brought under this chapter shall be appealable to the Supreme Court.” The findings made by a hearing justice, pursuant to a hearing for post-conviction relief, “ ‘are entitled to stand undisturbed on appeal in the absence of clear error or a showing that material evidence was overlooked or misconceived.’ ” Simpson v. State, 769 A.2d 1257, 1265 (R.I.2001) (

2000See Foley v. Osborne Court Condominium, 724 A.2d 436, 439 (R.I.1999).