Theresa Wells, Personally and in her Capacity as Executrix of the Estate of Amelia Carmone; Nicholas S. Mancieri and Mary T. Mancieri Nicholas Mancieri; George and Janet Mello Michael Andreozzi, Plaintiffs and Appellants
Ronald and Doris Blanchard Defendants and Appellees et al. Theresa Wells, Personally and in her Capacity as Executrix of the Estate of Amelia Carmone; Nicholas Mancieri; George and Janet Mello Michael Andreozzi, Plaintiffs/Appellants
The Town of Bristol Zoning Board of Review Ronald and Doris Blanchard Defendants/Appellees et al. Theresa Wells, Personally and in her Capacity as Executrix of the Estate of Amelia Carmone
Ronald and Doris Blanchard Defendants and Appellees Theresa Wells, Personally and in her Capacity as Executrix of the Estate of Amelia Carmone
Ronald and Doris Blanchard et al. John Wells, Personally and in his Capacity as Successor Administrator of the Estate of Amelia Carmone
Ronald and Doris Blanchard; Town of Bristol et al. John Wells, Personally and in his Capacity as Successor Administrator of the Estate Of Amelia Carmone; Nicholas Mancieri; George and Janet Mello; Plaintiffs/Appellants
State of Rhode Island Building Code Standards Committee; Ronald and Doris Blanchard; Town of Bristol, et al.
Before the Court are Defendant Ronald Blanchard's ("Mr. Blanchard") Super. R. Civ. P. 11 motions for sanctions against Attorney Keven A. McKenna ("Mr. McKenna"). Mr. Blanchard filed Rule 11 motions in six cases: PC 05-4066; PC 06-0609; PC 06-5659; PC 06-6481; PC 07-3471; and PC07-5153. Mr. Blanchard alleges that Mr. McKenna signed and filed papers in each of these cases without the consent of one or more of the individuals or entities that Mr. McKenna named as a party-plaintiff. Mr. Blanchard contends that in doing so, Mr. McKenna impliedly misrepresented certain fundamental facts to the Court and to Mr. Blanchard; i.e., that the named individual or entity genuinely sought to press specific legal claims against Mr. Blanchard and his wife ("the Blanchards"), and that the named individual or entity had authorized Mr. McKenna to assert those claims on that party's behalf.
Travel and History
Beginning in 2005, Mrs. Theresa Wells of Bristol, Rhode Island (Mrs. Wells"), attempted to block the Blanchards from developing a piece of property they recently had purchased from Mrs. Wells. With Mr. McKenna acting as her attorney, Mrs. Wells filed multiple non-judicial, administrative, and judicial challenges to the Blanchards' development project, including four of the six lawsuits at issue in this Decision. The challenges were brought by Mrs. Wells individually, and in her capacity as Executrix of her late mother's estate, the Estate of Amelia Carmone, which owned property near or abutting the Blanchards' project. Although all of Mrs. Wells' challenges involved appeals of state and local agency permitting decisions, she also asserted certain common law claims in conjunction with those challenges. Several neighbors and nearby property owners, George Mello, Janet Mello, Nicholas Mancieri, Mary T. Mancieri, and Michael Andreozzi, agreed to join forces in some of Mrs. Wells' challenges for the limited purpose of averting any flooding that might result if the property was developed. It is undisputed that it was Mrs. Wells who financed the entire effort and paid Mr. McKenna's fees. As the number of Mrs. Wells' challenges and lawsuits mounted, the Blanchards began to respond by filing counterclaims that included claims for abuse of process, malicious prosecution and misrepresentation.
Mrs. Wells died on December 24, 2006. At the time of her death, the only matters pending before the Superior Court were PC 05-4066; PC 06-0609; PC 06-5659; and PC 06-6481, all of which contained administrative appeals from Town of Bristol planning, building and zoning approvals. Also pending in the Sixth Division District Court was AA 06-81, which was an administrative appeal that had been taken from the Town's grant of the Blanchards' building permit. Shortly after Mrs. Wells died, Mr. McKenna substituted her son, John Wells, as executor of her estate and the Estate of Amelia Carmone.
After Mrs. Wells' death, Mr. McKenna filed a Complaint for Declaratory Judgment, and a Temorary Restraining Order, Preliminary, and Permanent Injunction in PC 07-3471. In it he named Mr. Wells and the Estate of Amelia Carmone as party plaintiffs. That case was dismissed on grounds that it was duplicative of other of the actions Mr. McKenna had filed. Mr. McKenna also filed a Complaint for Declaratory Relief, or in the Alternative, Administrative Appeal Complaint in PC07-5153. In it he named Mr. Wells, the Estate of Amelia Carmone, Nicholas Mancieri, George Mello and Janet Mello as party plaintiffs. That case was subsequently dismissed for lack of jurisdiction. Mr. McKenna, also in 2007, filed an appeal in PC 05-4066 which was subsequently dismissed for his failure to file his brief. In 2008, Mr. McKenna filed a notice of appeal the Rhode Island Supreme Court in PC 06-6481, an appeal that he failed to perfect and which was dismissed as a result.
Ultimately, all of the plaintiffs' claims contained in the six Superior Court cases were dismissed or decided in the Blanchards' favor. However, John Wells, the Estate of Amelia Carmone, the Estate of Theresa Wells and Mrs. Wells' neighbors and nearby property owners (collectively, "the Wells defendants") remained as defendants in the counterclaims.
In late 2010, all six of the pending cases were consolidated for purposes of case management and trial on the Blanchards' counterclaims.
On March 7, 2011, the Court held an initial status conference in the cases. The conference took place in open court. During the conference, Mr. McKenna represented to the Court that he represented Mrs. Wells' neighbors only in connection with Count 6 in PC 05-4066. In response, Mr. Blanchard pointed out that these same individuals also were named plaintiffs in other of the cases. Subsequently, on April 6, 2011, Mr. McKenna again denied representing Mrs. Wells' neighbors in any actions other than Count 6 of PC 05-4066. He indicated they had intervened in the subsequent cases on their own behalf.
In 2011, the Blanchards, who by then had incurred approximately $200, 000 in legal fees to defend the various nonjudicial, administrative and judicial challenges to their plans and were now acting in self-represented capacities, filed Blanchard v. Wells et al, PC 11-2584. In it, they amalgamated new and previously asserted abuse of process, malicious prosecution and misrepresentation claims against the Wells defendants who had sued them. They also named Mr. McKenna as a defendant in that action. They sought damages equivalent to their attorneys' fees incurred in PC 05-4066; PC 06-0609; PC 06-5659; PC 06-6481; PC 07-3471; and PC 07-5153.
Discovery ensued in PC 11-2584. During depositions, Mr. Blanchard questioned several of the Wells defendants about their various court filings. Each denied having agreed to be named as parties to certain of Mr. McKenna's causes of actions and appeals. As a result of these discovery disclosures, the Blanchards dropped some of their abuse of process and malicious prosecution claims. The remaining claims for abuse of process and malicious prosecution, including those against Mr. McKenna, subsequently were dismissed on summary judgment.
Thereafter, on April 8, 2013, Mr. Blanchard filed a Rule 11 motion for sanctions against Mr. McKenna. Although the motion was filed in PC 11-2584, it sought sanctions for Mr. McKenna's conduct in signing and filing documents in PC 05-4066; PC 06-0609; PC 06-5659; PC 06-6481; PC 07-3471; and PC 07-5153.
Mr. Blanchard appended copies of five of the Wells' defendants' deposition transcripts to his Rule 11 motion. Each of the five deponents had testified that they were unaware of one or more of the proceedings and appeals that Mr. McKenna had filed, purportedly on their behalf. They also stated that they never authorized Mr. McKenna to represent them in such proceedings.
According to Mr. Blanchard, the litigation took on a life of its own after Mrs. Wells' death, with Mr. McKenna acting as the driving force. Mr. Blanchard argued that Mr. McKenna's conduct necessitated additional litigation in the various cases and led to preventable discovery in PC 11-2584. According to Mr. Blanchard, he and his wife would not have brought abuse of process or malicious prosecution claims against the Wells' defendants had they known these defendants had not authorized the proceedings to be brought in their names.
Mr. Blanchard sought sanctions in the form of 25% of the costs of discovery in PC 11-2584. In addition, Mr. Blanchard sought sanctions equivalent to the very substantial attorneys' fees he and his wife had incurred in defending PC 05-4066; PC 06-0609; PC 06-5659; PC 06-6481; PC 07-3471; and PC07-5153. This Court determined that the Rule 11 motion filed in PC 11-2584 had merit and, accordingly, directed Mr. McKenna to show cause as to why he should not be sanctioned. Ultimately, however, the Court denied the motion on July 24, 2013. In a lengthy bench ruling, the Court explained that it was declining to impose sanctions in the context of PC 11-2584 for Rule 11 violations that had occurred in other matters, some of which had been filed in state agencies and in courts other than the Superior Court. However, recognizing that final judgment had previously entered in all of the cases except PC 05-4066, the Court left open the question of whether or not Mr. Blanchard's request for Rule 11 sanctions in connection with those cases was timely.
Thereafter, on March 27, 2014, Mr. Blanchard filed the instant Rule 11 motions for sanctions in PC 05-4066; PC 06-0609; PC 06-5659; PC 06-6481; PC 07-3471; and PC07-5153. The grounds and supporting documentation are substantially the same as those upon which Mr. Blanchard had relied when he filed his Rule 11 motion for sanctions in PC 11-2584. According to Mr. Blanchard, Mr. McKenna was acting without the knowledge or consent of one or more of the individuals he named as parties in the papers he filed in connection with the various proceedings. Mr. Blanchard seeks sanctions of approximately $38, 000, which is equivalent to the amount of attorneys' fees that he paid after Theresa Wells died on December 24, 2006, as well as monetary sanctions commensurate with the amount of time he spent defending himself as a self-represented litigant. Although Mr. Blanchards attorneys' billing records do not specify each task by docket number, he argues that the fees can be fairly apportioned, on a percentage basis, based upon the general activity reflected in the case docket sheets.
Mr. McKenna filed a written objection on April 9, 2014. The objection was sparse and the arguments wholly undeveloped. In addition, the objection contained unsupported assertions of law. For example, Mr. McKenna asserted that "[Mr. Blanchard] is not an attorney and, therefore, has no standing to file a Rule 11 motion;" "Keven McKenna is not a party to this matter;" and "This case is closed." Although Mr. Blanchard was very specific about the amount of sanctions he was seeking, Mr. McKenna did not assert the affirmative defense of inability to pay the requested sanction amounts.
After reviewing the materials submitted in connection with the Rule 11 motions, this Court once again determined there were grounds to require Mr. McKenna to show cause.
On May 8, 2014, this Court provided Mr. McKenna with notice of the Court's intention to consider the issue of sanctions, detailed the grounds therefore, and advised him that the Court would consider monetary sanctions. The Court further identified the improper purposes for which the pleadings seemingly may have been interposed in violation of Rule 11. The Court also pointed Mr. McKenna to the March 7, 2011 and April 6, 2001 proceedings during which Mr. McKenna denied representing Mrs. Wells' neighbors and nearby property owners except in connection with a single count in the amended complaint filed in PC 05-4066. Finally, the Court advised Mr. McKenna that he was entitled to an evidentiary hearing during which he would be permitted to present witnesses and other evidence.
The Court cautioned Mr. Blanchard to the effect that Rule 11 is not designed to be a substantive remedy nor a fee-shifting mechanism, and that Mr. Blanchard's role in the proceedings would be limited because it is the court's responsibility, not a litigant's, to vindicate any Rule 11-based abuse of the judicial process. See U.S. v Kouri-Perez, 8 F.Supp.2d 133, 140 (D. Puerto Rico 1998) appeal dismissed for lack of appellate jurisdiction, 187 F.3d 1 (1st Cir. 1999) (imposing, under its inherent powers and under 28 U.S.C. § 1927, a "monetary sanction to vindicate the time and effort devoted by the government, the court, and court personnel . . . and to steer th[e] case back on to a civil, respectful, and courteous course").
At the time of the May 8, 2014 hearing, Mr. McKenna also filed a document entitled "Memorandum and Statement of Keven A. McKenna Opposing to Ronald Blanchard Statement of March 27, 2014 Statement" which expanded upon his earlier filed objection papers. In addition, on July 9, 2014, Mr. McKenna filed documents in PC 05-4066, PC 06-0609, PC 06-6481 and PC 07-5153, entitled "Memorandum in Support of Motion to Dismiss by Former Counsel to Michael Andreozzi, George Mello, Nicholas Maincieri, and Theresa Wells and John Wells."
Both Mr. McKenna and Mr. Blanchard provided the Court with exhibits, including the original depositions of five of the Wells defendants who had been available for deposition: John Wells, Nicholas Mancieri, Nicholas S. Mancieri, George Mello and Michael Andreozzi.
On July 21, 2014, Mr. McKenna also submitted affidavits that had been signed by George Mello and Michael Andreozzi on July 15, 2014.
After multiple delays, Mr. McKenna's show cause hearing was conducted on August 20, 2014, at which time he presented evidence and made extensive oral argument, but he did not testify in his own defense.
II The Evidence Supporting the Show Cause Order
A. Mr. McKenna's in-Court Statements on March 7, 2011 and April 6, 2011
As previously indicated, the Court held an initial status conference in these cases on March 7, 2011. The conference took place in open court. An informal transcript of the proceedings confirms the following colloquy between the Court, Mr. McKenna, and Mr. Blanchard:
"THE COURT: Mr. McKenna, how many of these individuals do you represent? All of them?
MR. McKENNA: In 05-4066, the appeal from the Zoning Board included the people who lived on Harker Street and Hope. That's who those people are. They were in a group in Count 6.
THE COURT: Could you tell me –
MR. McKENNA: They only -- these people I only represented with regard to Count 6 of 05-4066 because they were the objectors at the hearings and in Bristol. So that's --
THE COURT: So you represent them, okay,
MR. McKENNA: In that count, your Honor. They're not in anything else.
MR. BLANCHARD: May I say something, your Honor? There were other cases where these -- all of these plaintiffs were -- all of the same parties, plaintiffs, in the 05 case were also plaintiffs in other cases. Not all of the cases, but some of the cases particularly having to do with the building permit appeal. One of the cases and one of the 07 cases. So they were in – some of these parties were involved in some of the other cases.
Thereafter, the Court ordered the parties to attend a mediation to take place on April 6, 2011, at the courthouse, with court-appointed mediator Attorney John Boland.
As is reflected in the various transcripts in this case,  Mr. McKenna initially attempted to obstruct the scheduled mediation. He then arrived late on April 6, 2011 and without any of his clients.
The following colloquy took place on April 6, 2011:
THE COURT: …Where are your clients, Mr. McKenna?
MR. McKENNA: Dead.
THE COURT: All of them? . . .
MR. McKENNA: Yeah, the son of Mrs. Wells lives in Tennessee and drives a truck.
THE COURT: And where is he?
MR. McKENNA: Haven't the slightest idea. He could be in California.
THE COURT: Why isn't he here?
MR. McKENNA: One, he has not been notified of --
THE COURT: Pardon me?
MR. McKENNA: I have not notified him.
THE COURT: You're representing him. Why didn't you notify him?
MR. McKENNA: I didn't know that he had to be here.
THE COURT: You didn't get a copy of my letter or --I'm sorry --my order or Mr. Boland's two letters?
MR. McKENNA: Two letters? I don't think I did, no. I don't recall one letter that said the client had to be here. It would be an incredibly costly expense for him to have to travel to Rhode Island. But I didn't get in touch with him regarding –
THE COURT: Which of your clients are deceased?
MR. McKENNA: I only have one, your Honor. ...