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Rhode Island District Court
Civil Rules of Procedure

VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

Index:

  1. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

    1. RULE 64. REPLEVIN
      1. Issuance.
      2. Replevin on Counterclaim, Cross-Claim, or Third-Party Complaint.
      3. Subsequent Issuance.
      RULE 65. INJUNCTIONS IN HOUSING CASES
      1. Preliminary Injunction.
        1. Notice.
        2. Hearing;
      2. Temporary Restraining Order; Notice; Hearing; Duration.
      3. [Reserved].
      4. Form and Scope of Injunction or Restraining Order.
      5. Applicability.
      RULE 66. [RESERVED]
      RULE 67. DEPOSIT IN COURT--REGISTRY
      1. Deposit in Court.
      2. Registry of Court; Deposit and Withdrawal of Funds.
      RULE 68. OFFER OF JUDGMENT; PAYMENT INTO COURT
      1. Offer of Judgment.
      2. Payment Into Court.
      3. Offer Not Accepted.
      RULE 69. EXECUTION; SUPPLEMENTARY PROCEEDINGS; ATTACHMENT AND TRUSTEE PROCESS AFTER JUDGMENT, WAGE ATTACHMENT
      1. Execution.
      2. Citation in Supplementary Proceedings
        1. Definition.
        2. Issuance.
        3. Service.
        4. Hearing on Citation.
        5. Failure to Appear by Debtor.
      3. Decree for Installment Payments.
        1. Issuance.
        2. Modifications.
        3. Enforcement.
      4. Contempt.
      5. Trustee Process After Judgment (Non-wages).
      6. Motion for Attachment of Wages After Judgment.
      7. Order of Attachment of Wages.
      RULE 70. ORDER TO PERFORM OR TO REFRAIN FROM PERFORMING AN ACT--CONTEMPT
      RULE 71. [RESERVED]


RULE 64. REPLEVIN

    1. (a) Issuance. A plaintiff claiming the possession of goods and chattels wrongfully taken or detained shall proceed by complaint and summons in an action under these rules and in connection therewith may make a motion for issuance of a writ of replevin as provided by law, which shall be served along with the complaint and summons. The motion shall be granted only upon a showing that there is a probability of a judgment being rendered in favor of the plaintiff and that there is a substantial need for transfer of possession of the goods and chattels to the plaintiff pending adjudication of the claim. In lieu of ordering issuance of the writ of replevin the court may order the defendant to give security for satisfaction of any judgment which may be rendered in the action. A surety upon a bond or undertaking hereunder shall be subject to the provisions of Rule 4(j)(3). A motion or issuance of a writ of replevin shall not be granted ex parte.
    2. (b) Replevin on Counterclaim, Cross-Claim, or Third-Party Complaint. Goods or chattels may be replevied on writ of replevin by a party bringing a counterclaim, crossclaim, or third-party complaint in the same manner as upon an original claim, provided that the goods or chattels are located in the division where the action is pending.
    3. (c) Subsequent Issuance. A writ of replevin may be issued subsequent to commencement of the action in accordance with subdivision (a). Such writ may also be issued by way of execution.

RULE 65. INJUNCTIONS IN HOUSING CASES

    1. (a) Preliminary Injunction.
      1. (1) Notice. No preliminary injunction shall be issued without notice to the adverse party.
      2. (2) Hearing; Consolidation of Hearing With Trial on Merits. An application for a preliminary injunction shall be heard on evidence or affidavits or both at the discretion of the court. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application.
    2. (b) Temporary Restraining Order; Notice; Hearing; Duration. No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; and shall expire by its terms within such time after entry, not to exceed ten (10) days, as the court fixes, unless within the time so fixed the order by consent or for good cause shown and after hearing of argument by the parties or counsel, is extended for an additional period. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and may be given precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two (2) days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. If an application for a temporary restraining order without notice to the adverse party is made to and denied by one judge of the court, such application shall not again be made to any other judge unless there is a material change in circumstances. The judge to whom such application was originally presented shall note his or her action upon the complaint containing such application.
    3. (c) [Reserved].
    4. (d) Form and Scope of Injunc tion or Restraining Order. Every order granting an injunction and every restraining order shall be specific in terms; shall describe in reasonable detail the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. (e) Applicability. This rule shall apply to proceedings brought pursuant to > G.L. 1956 (1970 reenactment) ß 45-24.2-8.

RULE 66. [RESERVED]

RULE 67. DEPOSIT IN COURT--REGISTRY

    1. (a) Deposit in Court. In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing.
    2. (b) Registry of Court; Deposit and Withdrawal of Funds. The clerk of the court in each division shall be the registrar of the court for that division and shall have charge of all funds and things deposited in cases pending in said division. Funds so deposited shall be known as registry funds and shall be by check only payable to the Registry of the District Court and endorsed "for deposit only" by the clerk of the court. Such funds shall be deposited in a savings account or accounts in some mutual savings bank or banks, or a savings or participation account or accounts in a commercial bank or trust company in the name of the Registry of the District Court for the division. Withdrawal from such account shall be only upon written order of the court. Withdrawal instruments shall be signed by both the clerk of the division and a judge of the court.

RULE 68. OFFER OF JUDGMENT; PAYMENT INTO COURT

    1. (a) Offer of Judgment. At any time more than ten (10) days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him or her for the money or property or to the effect specified in his or her offer, with costs then accrued. If within ten (10) days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance and thereupon the clerk shall enter judgment.
    2. (b) Payment Into Court. A party defending against a claim may pay into court by depositing with the clerk a sum of money on account of what is claimed, or by way of compensation or amends, and plead that he or she is not indebted to any greater amount to the party making the claim or that the party making the claim has not suffered greater damages. The party making the claim may (1) accept the tender and have judgment for his or her costs, (2) reject the tender, or (3) accept the tender as part payment only and proceed with his or her action on the sole issue of the amount of damages.
    3. (c) Offer Not Accepted. An offer under subdivision (a) or (b) above not accepted in full satisfaction shall be deemed withdrawn, and evidence thereof is not admissible except in a proceeding to determine interest or costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted, or accepted only as part payment, does not preclude a subsequent offer.

RULE 69. EXECUTION; SUPPLEMENTARY PROCEEDINGS; ATTACHMENT AND TRUSTEE PROCESS AFTER JUDGMENT, WAGE ATTACHMENT

    1. (a) Execution. Process to enforce a judgment for the payment of money shall be a writ of execution unless the court directs otherwise. The procedure on execution, and in proceedings on in aid of execution shall be in accordance with applicable statutes. In aid of the judgment or execution, the judgment creditor, or his or her successor in interest when that interest appears of record, may examine any person, including the judgment debtor, in the manner provided in these rules for taking depositions.
    2. (b) Citation in Supplementary Proceedings. (1) Definition. A citation in supplementary proceedings is an order issued by the clerk to a judgment debtor ordering him or her to appear before the court at a time and place named to show cause why an examination into his or her circumstances should not be made and a decree be entered ordering him to pay such judgment in full or by installment. (2) Issuance. A citation may be issued upon application by a judgment creditor, execution on whose judgment has been returned unsatisfied, either in whole or in part. (3) Service. Said citation shall be served by delivering a copy to the debtor or by leaving a copy at the last and usual place of abode of the debtor with some person living there, at least six (6) days before the date of appearance named therein. The clerk may include an order of citation in supplementary proceedings on the same form as the writ of execution issued against the debtor and said citatio n shall become effective whenever said judgment debtor fails to satisfy the demand of the sheriff or constable serving the writ of execution. (See sample of form set forth in appendix). If the execution is to be returned unsatisfied, the sheriff or constable shall write or mark the legend "EXECUTION UNSATISFIED, DEBTOR MUST APPEAR IN COURT" on the copy of the execution left with the judgment debtor. (4) Hearing on Citation. At the hearing on the citation, the court may make or permit to be made by the judgment creditor, an examination of the judgment debtor or other inquiry into the judgment debtor's assets, income and circumstances and the financial ability of the judgment debtor to pay the judgment. (5) Failure to Appear by Debtor. If the judgment debtor upon whom a citation has been served fails to appear in response thereto, the inquiry may proceed in his or her absence and a civil body attachment may be issued for such judgment debtor, as in the manner provided ß 9-17-7 for witnesses in civil cases who fail to appear as commanded.
    3. (c) Decree for Installment Payments. (1) Issuance. If, after allowing the judgment debtor out of his or her income a reasonable amount for the support of the debtor and the debtor's family, if any, the court finds that the debtor is able to pay the judgment in full or by periodic instalment payments, it shall enter a decree fixing the amount, frequency, and manner of said payment. (2) Modifications. A further hearing on the subject of the debtor's ability may be held on the motion of any party after notice given to all other parties. Notice shall be given in the manner provided by Rule 5(b), except that no further hearing shall be held regarding a debtor for whom no ability to pay has earlier been determined by the court, unless the court, after examination of an affidavit or the receipt of sworn testimony, finds cause to believe that a new inquiry should be made and permits such a hearing to be scheduled. (3) Enforcement. If a judgment debtor has failed to comply with an instalment payment decree, the clerk, upon application by an unsatisfied judgment creditor, shall issue a citation which shall order the debtor to appear and show cause for his or her noncompliance. Service of said citation shall be in a like manner to that provided for service of citations in supplementary proceedings as provided in subdivision (b)(1). A civil body attachment may be issued for a judgment debtor who fails to appear in response to a citation to show cause for noncompliance, as in the manner provided by ß 9-17-7 for witnesses in civil cases who fail to appear as commanded.
    4. (d) Contempt. A refusal or wilful failure to comply within the time stated in the decree shall be punishable as a contempt of court. If, as a result of contempt proceedings, the debtor is imprisoned by order of the court, said incarceration shall not operate to satisfy said judgment or bar any action to reach any assets, either at law or at equity.
    5. (e) Trustee Process After Judgment (Non-wages). (1) In any actio n, including small claims actions, where the plaintiff's claim has been reduced to judgment, the defendant's assets, including his or her personal estate, may be attached and be subjected to trustee process in the action in which the judgment has been entered. (2) On the day of service of a post-judgment writ of trustee process upon a garnishee, other than a writ attaching wages or a writ against a corporate or business entity judgment debtor, the plaintiff shall mail to the court and to the defendant at the last known address a copy of the writ of trustee process and a notice thereof (substantially in the form as set forth in the appendix) containing a date for a hearing before the court of any claim for exemption which the defendant may have under federal or state law. The date for the hearing shall be not less than seven (7) nor more than twelve (12) days after the day of mailing of the notice. Said notice shall be deemed to continue in full force and effect without prejudice as a matter of course and shall not be placed upon the motion calendar unless objection thereto is served and filed at least two (2) days before the time specified for its hearing. However, a debtor's failure to object to said motion shall not be deemed as a waiver of any statutory exemptions available to said debtor, and a debtor may move at any time to amend or vacate an order of attachment.
    6. (f) Motion for Attachment of Wages After Judgment. A writ of attachment to be served as a writ of garnishment of wages after the plaintiff's claim has been reduced to judgment in any civil or small claims action shall be issued, in the same action, only upon motion and notice to the defendant and an opportunity to be heard thereon. The notice shall be substantially in the form as set forth in the appendix (Notice and Motion to Attach Wages) and shall contain the date of the hearing, which shall be not less than ten (10) nor more than twenty- five (25) days after the date of the mailing of the notice. No wage attachment shall be served upon an employer until after the date of the hearing. Said motion shall be deemed to be granted without prejudice as a matter of course and shall not be placed upon the motion calendar unless objection thereto is served and filed at least two (2) days before the time specified for its hearing. However, a debtor's failure to object to said motion shall not be deemed as a waiver of any statutory exemptions available to said debtor, and a debtor may move at any time to amend or vacate an order of attachment.
    7. (g) Order of Attachment of Wages. If, after the time set for hearing, the motion is granted, then a writ of attachment may be served upon the employer, along with a completed copy of a notice to the employer (substantially in the form as set forth in the appendix). A writ of attachment so issued shall expire without prejudice unless served upon the employer within forty- five (45) days of its issuance, and no subsequent writ of attachment shall be issued in the same action without notice to the defendant and an opportunity for a hearing as provided herein. The granting of said motion shall relate only to current and identified wages, and recovery in post-judgment process shall be limited to the amount of the judgment plus actual costs expended and post-judgment statutory interest. The Writ attaching wages may take one of two (2) forms:
      1. (1) An order to the employer to
        1. (i) withhold a specified amount from the wages payable to the defendant and to accumulate the amounts withheld until a designated total has been reached;
        2. (ii) to report the completion of the withholding to plaintiff or, if plaintiff is represented by counsel, to plaintiff's attorney, and,
        3. (iii) to continue to retain said amounts until the employer receives (A) an Order of charge from the Court, (B) a release by the employee permitting the funds to be transmitted to the plaintiff, or (C) a release by the plaintiff permitting the funds to be returned to the employee;
      2. (2) An order to the employer to withhold a specified amount from the wages payable to the defendant and to pay over said amounts to plaintiff or, if plaintiff is represented by counsel, to plaintiff's attorney on an ongoing basis on each pay date. Payments made by the employer pursuant to this subdivision shall be considered as ha ving been made pursuant to a charge against the employer. The issuance of the Writ of Attachment for Garnishment shall be without prejudice to the debtor's right to bring a Motion for relief based on constitutional or statutory rights or exemptions.

RULE 70. ORDER TO PERFORM OR TO REFRAIN FROM PERFORMING AN ACT--CONTEMPT

    If an order or judgment directs a party to perform or to refrain from performing a specified act and the party fails to comply within the time specified, the court may adjudge the party in contempt.

RULE 71. [RESERVED]