Joyce Duffy et al.
Estate of Bartolomie Scire
Appeal from Superior Court. Kent County. (KP 11-28). Associate Justice Daniel A. Procaccini.
For Plaintiffs: Michael J. McCaffrey, Esq.
For Defendant: J. Richard Ratcliffe, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
These consolidated appeals cause us to once again consider the sometimes stringent requirements for perfecting Probate Court appeals. The appeals involve a petition filed by Joyce Duffy and Donna O'Reilly (plaintiffs) for the appointment of a guardian over their father, Bartolomie Scire (defendant or estate). After a judge of the Warwick Probate Court denied the petition, the plaintiffs appealed to the Superior Court for Kent County, where their complaint seeking review from the probate decision was dismissed.
This case came before the Supreme Court for oral argument on May 3, 2012, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, and following two remands for factual determinations, we are of the opinion that cause has not been shown. For the reasons indicated herein, we vacate the judgment of the Superior Court.
Facts and Travel
The pertinent facts and crucial dates are not in dispute. In February of 2009, plaintiffs filed a petition in the Warwick Probate Court for the appointment of a guardian over defendant. A temporary guardianship was granted on February 19, 2009, and the matter later proceeded to a hearing on April 29, 2010. At the hearing, testimony was taken and various records were submitted as exhibits. Thereafter, on December 13, 2010, the Probate Court issued a decision which, inter alia, granted defendant's motion to dismiss the temporary guardianship and denied plaintiffs' petition for the appointment of a permanent guardian.
On December 30, 2010, plaintiffs filed a claim of appeal to the Superior Court with the Probate Court. Also on that date,
plaintiffs wrote to the Probate Clerk requesting a certified copy of the claim and certified record of the proceedings appealed from, along with the cost of the certified documents. On January 3, 2011, plaintiffs' counsel wrote to opposing counsel seeking a stipulation of the probate record.
On January 7, 2011, plaintiffs filed a complaint in the Kent County Superior Court appealing the decision of the Warwick Probate Court. Attached to the complaint were certified copies of the claim of appeal, the Probate Court decision and order, and a copy of the uncertified transcript of the April 29, 2010 Probate Court hearing. On that same day, plaintiffs filed a motion in Superior Court to extend (for sixty days) the time for completion of the record of the probate appeal pursuant to G.L. 1956 § 33-23-1(c), as amended by P.L. 2007, ch. 257, § 2, asserting that " the transcript of proceedings is not yet available." That motion was scheduled for hearing before the Superior Court on January 24, 2011. On January 20, 2011, defendant filed a motion to dismiss both plaintiffs' appeal and their motion to extend time for completion of the record of the probate appeal, claiming that plaintiffs had failed to perfect their appeal pursuant to § 33-23-1; additionally, defendant moved to affirm the Probate Court decision.
Also, on January 13, 2011, one day after the period to file the certified Probate Court record with the Superior Court expired--and apparently due to what plaintiffs' filings imply may have been a delay by the Probate Court Clerk's office --the Probate Clerk wrote to plaintiffs' counsel advising him of the cost to copy the record and acknowledging receipt of plaintiffs' affidavit of proof of filing and docketing of the appeal in Superior Court. See § 33-23-1(a)(2). Payment for the copying costs was subsequently made on January 20, 2011.
Thereafter, a hearing was held in the Superior Court on January 24, 2011. At that hearing, defendant argued that failure to comply with the deadlines in subsections (a)(1) and (a)(2) of § 33-23-1(a) was jurisdictional
based upon this Court's interpretation of the language in § 33-23-1(e). In contrast, plaintiffs contended that an extension of time to transmit the Probate Court record was permitted under the circumstances. The hearing justice subsequently denied plaintiffs' motion to extend the time for filing the record and transcript and granted defendant's motion to dismiss the appeal, implicitly affirming the decision of the Probate Court. On February 2, 2011, after the entry of final judgment in accordance with Rule 54(b) of the Superior Court Rules of Civil Procedure, plaintiffs filed a timely notice of appeal to this Court.
Later, on March 14, 2011, pursuant to G.L. 1956 § 9-21-6, plaintiffs filed a motion in Superior Court arguing that the dismissal of the Probate Court appeal was improper since the delay in transmitting the Probate Court record was caused by the Probate Clerk in not preparing the record on time. On March 22, 2011, plaintiffs moved in the Superior Court to extend the time for filing the transcript of the January 24, 2011 hearing pursuant to Article I, Rule 11(c) of the Supreme Court Rules of Appellate Procedure. The defendant objected to both motions. On March 28, 2011, finding that defendant had failed to offer evidence that the Probate Court was unable to produce the records and that plaintiffs' counsel should have been more assertive in seeking the records, the hearing justice denied both motions. The plaintiffs timely appealed to this Court.
On June 14, 2012, this Court remanded the case back to the Superior Court for an evidentiary hearing regarding the issue of whether there was a backlog that existed at the time when plaintiffs were attempting to transmit the Probate Court record to the Superior Court for appeal. On August 20, 2012, the case came before the same justice who had decided the matters on appeal from the Probate Court. At the hearing, the Probate Clerk for Warwick and the Administrator for the Warwick Probate Court both testified that nothing would have prevented the Probate Court from complying with a timely request to copy the record.
On February 11, 2014, this Court once again remanded the case back to the Superior Court with the explicit directive to the hearing justice that he make findings of fact and credibility assessments of the witnesses who testified at the hearing on August 20, 2012. On March 3, 2014, after the Superior Court established that the testimony of the Probate Clerk and Administrator given on August 20, 2012 was in fact credible, the case was returned to this Court.
Standard of Review
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