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Erinakes v. Odeum Corp.

Superior Court of Rhode Island

January 16, 2015


Kent County Superior Court

For Plaintiff: Vincent T. Cannon, Esq.

For Defendants: Jeffrey H. Gladstone, Esq., Marvin Homonoff, Esq. Jennifer A. Minuto, Esq. Thomas J. Enright, Esq.



Before this Court is the Motion to Dismiss[1] submitted by the Defendant, The Odeum Corporation (Odeum or Defendant). The Defendant seeks a dismissal of Stephan G. Erinakes' (Erinakes or Plaintiff) Complaint on the grounds that the Plaintiff has failed to bring the cause of action within the applicable statute of limitations period. The Plaintiff's Complaint seeks a declaration from this Court that the promissory note (Blanch Note) and mortgage allegedly executed by Odeum is valid, and that the Blanch Note is secured by the alleged mortgage. The Defendant further alleges the Motion should be granted on the grounds that the Plaintiff does not possess authority to enforce the disputed Blanch Note. Plaintiff has filed an objection to the pending Motion. Jurisdiction is pursuant to Super. R. Civ. P. 12(b)(6).

I Facts and Travel

The Plaintiff is a resident of East Greenwich, Rhode Island. Odeum is a domestic nonprofit corporation organized and existing under Rhode Island law, with a principal place of business in East Greenwich, Rhode Island. The current case concerns a dispute between the Plaintiff and Defendant regarding the validity and enforceability of a Blanch Note and mortgage issued by Odeum. (Am. Compl. ¶ 7). The property securing the Blanch Note is located at 59 Main Street, East Greenwich, Rhode Island, also known as the Greenwich Odeum. Id. at ¶ 8.

In the 1920s, the Plaintiff's family owned and operated a movie theatre known as the Greenwich Theatre. Id. at ¶ 9. By 1961, George Erinakes was the owner of the Greenwich Theatre. Id. at ¶ 10. After George Erinakes' death in 1973, the property passed to his wife, Blanch Erinakes.[2] Id. at ¶ 11. The Plaintiff is the son of George and Blanch Erinakes. Id. at ¶ 12. By January 1985, Blanch had transferred interest in Greenwich Theatre to the trustee of three separate trusts, with each trust receiving a 9.5238% interest in the property. Id. at ¶¶ 13-15. Each trust had one beneficiary, with Emmanuel Coutoulakis, Elissa Coutoulakis, and Kristen Coutoulakis each being named a beneficiary of a different trust. The Plaintiff was named the Trustee for each trust. Id. On December 29, 1984, Blanch Erinakes transferred an additional 9.5238% interest in the property to Mildred Gebbart[3], who later conveyed-on January 14, 1992-that interest to Odeum.[4] Id. at ¶¶ 16-17. In 1989, when the Greenwich Theatre closed, the Plaintiff and his friend, Philip Sidel, formed a nonprofit corporation to operate a theatre. Id. at ¶¶ 19-20.

On March 1, 1991, Odeum was created, with the Plaintiff as the president and Philip Sidel as vice-president. Id. at ¶ 21. On December 31, 1991, Blanch Erinakes deeded her remaining interest to Odeum, and, in return, Odeum issued Blanch Erinakes a $500, 000 promissory note[5] and executed a mortgage.[6] Id. at ¶¶ 24-25. The Greenwich Theatre was reopened as the Greenwich Odeum in 1991 as a venue for live performing arts.[7] [8] Id. at ¶ 27. On December 30, 1994, Blanch Erinakes allegedly gifted a portion of the Blanch Note to Odeum, reducing the amount of the note to $450, 000. Allegedly, on May 30, 1996, Blanch Erinakes assigned the Blanch Note to the Plaintiff. Id. at ¶ 46. On July 6, 1999, Blanch Erinakes passed away. Id. at ¶ 29. The Executor of her Estate, Bank of America, N.A., again allegedly, assigned Blanch Erinakes' interest in the Blanch Note and mortgage to the Plaintiff.[9] Id. at ¶ 30. In 1999, Plaintiff attempted to probate a will created by Blanch Erinakes on November 16, 1994, which was challenged by the Plaintiff's sister. The Supreme Court upheld the decision that Blanch Erinakes lacked testamentary capacity to make this will. During the period of 1991 through 2007, grants and revenues barely covered Odeum's expenses, and payments were not made on the mortgage or the Blanch Note. Id. at ¶ 32. During this time period, Odeum allegedly recognized the validity of both documents and acknowledged forbearance by the holder of the Blanch Note and mortgage to demand payment.[10] Id. at ¶ 33.

The Greenwich Odeum shut down in 2007, remaining closed until 2012. In 2012, local residents sought to reopen the Greenwich Odeum. By 2012, the Plaintiff was no longer on the Board of Directors of Odeum. Id. at ¶ 37. However, his name appeared on Odeum's 2008, 2009, and 2010 tax returns. During that time period, Plaintiff never made a demand for payment. On November 16, 2012, the Plaintiff demanded payment of the amount due under the Blanch Note. A board member for Odeum informed the Plaintiff that the Blanch Note and mortgage were not enforceable. Id. at ¶ 40. The Plaintiff alleges the Blanch Note and mortgage remained in effect from its creation on December 31, 1991, and that Odeum acknowledged and accepted Blanch Erinakes and the Plaintiff's forbearance from seeking payment under the promissory note.[11]

II Standard of Review

"The 'sole function of a motion to dismiss' pursuant to Rule 12(b)(6) is 'to test the sufficiency of the complaint.'" McKenna v. Williams, 874 A.2d 217, 225 (R.I. 2005) (quoting R.I. Affiliate, ACLU, Inc. v. Bernasconi, 557 A.2d 1232, 1232 (R.I. 1989)). In assessing a Super. R. Civ. P. 12(b)(6) motion to dismiss, this Court '"assumes the allegations contained in the complaint to be true and views the facts in the light most favorable to the plaintiffs."' Giuliano v. Pastina, 793 A.2d 1035, 1036 (R.I. 2002) (quoting Martin v. Howard, 784 A.2d 291, 297-98 (R.I. 2001)). The motion "should be granted only when it is clear beyond a reasonable doubt that the plaintiff would not be entitled to relief under any set of facts that could be proven in support of the claim." Siena v. Microsoft Corp., 796 A.2d 461, 463 (R.I. 2002) (citation omitted).

Ordinarily, the court's review of a motion to dismiss is confined to the complaint, Barrette v. Yakavonis, 966 A.2d 1231, 1234 (R.I. 2009), and if the court goes outside the complaint, the court must convert the motion into a motion for summary judgment. See Coia v. Stephano, 511 A.2d 980 (R.I. 1986). This rule carries less force, however, where the pleading contains more than just a complaint. "A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes." Super. R. Civ. P. 10(c). The motion justice may consider and refer to documents incorporated into a complaint by reference when ruling on a motion to dismiss. Bowen Court Assocs. v. Ernst & Young, LLP, 818 A.2d 721 (R.I. 2003) (citing Super. R. Civ. P. 10(c)); 27A Federal Procedure § 62:509. Such documents "must be referred to explicitly, " or be "exhibit[s] annexed to the complaint." 1 Kent, R.I. Civil Practice § 10.3 at 100 (1969); see also 5B Wright & Miller, Federal Practice and Procedure 3d ยง 1357 at 377. The rationale underlying this rule is that the primary problem raised by looking to documents outside the ...

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