Donatelli v. Donatelli

         Providence County Superior Court

          For Plaintiff: Thomas A. Tarro, III, Esq.

          For Defendant: Michael A. Kelly, Esq. Robert A. Mitson, Esq.

          DECISION

          SILVERSTEIN, J.

         Currently before the Court are Motions for Summary Judgment filed by co-Defendant, Martha Donatelli (Martha), and the Plaintiff, Craig Donatelli (Craig), in this matter. This Court has jurisdiction pursuant to the Uniform Declaratory Judgments Act. See G.L. 1956 § 9-30-1.

         I Facts and Travel

         Donbro Realty Associates (Donbro) is a general partnership existing under the laws of the State of Rhode Island. At the time of its formation in 1986, Donbro had seven general partners. Two of the partners, John C. Donatelli (Clark) and Richard Donatelli (Richard), were brothers.

         On June 10, 2004, Richard and Clark purportedly entered into an agreement (the 2004 Agreement) wherein each brother's interest in Donbro was said to equal 10 percent. Prior to reaching the 2004 Agreement, Richard's interest in Donbro (18.75 percent) was three times larger than Clark's (6.25 percent). Apparently in exchange for reducing his own interest in Donbro, and for allowing his brother to have a larger share, Richard received the right to collect the first $9000 from any future distribution of partnership profits. Richard denies having made the deal, and no amendments reflecting the transaction were ever made to Donbro's Partnership Agreement (the Partnership Agreement). Furthermore, the 2004 Agreement, which resulted in a modification of the brothers' respective interests in Donbro, was never approved by Donbro's general partners.

         On February 10, 2005, Clark passed away, and his interest in Donbro was transferred to his wife, Martha. Martha maintains that her ownership interest in Donbro is valid, and that it is equal to Richard's. Richard disputes her claim, and Craig has requested a declaratory judgment regarding the rights of the respective parties.^[1]

         II Standard of Review

         A trial justice presented with a motion for summary judgment may not rule on the weight or credibility of the evidence presented. See Indus. Nat'l Bank v. Peloso, 121 R.I. 305, 307, 397 A.2d 1312, 1313 (1979). Instead, his or her only function is to determine whether any issues of material fact exist and, if they do, to deny the motion for summary judgment. See id.; see also Super. R. Civ. P. 56(c). "[A] litigant opposing a motion for summary judgment has the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest upon mere allegations or denials in the pleadings, mere conclusions, or mere legal opinions." Manning Auto Parts, Inc. v. Souza, 591 A.2d 34, 35 (R.I. 1991).

         III Analysis

         Here, Martha acknowledges that the Partnership Agreement gave Donbro's general partners the right to pass on any transaction which resulted in the transfer of partnership interests. Martha also admits that Donbro's general partners never expressly approved of either the 2004 Agreement or of her acquisition of Clark's purported interest in the partnership. However, Martha argues that Donbro's general partners have never done business in accordance with the terms of the Partnership Agreement and have consistently failed to object to prior violations of the express terms of the Partnership Agreement.

         In support of her contentions, Martha cites, inter alia, to the deposition of Donbro's accountant, Robert Buco (Buco). See Dep. of Robert Buco, CPA, Dec. 27, 2013. During his deposition, Buco was asked, "do you recall the last time you had a partnership meeting with DonBro, " and he replied in the following manner: "At least two years ago, maybe more, it's been awhile." Id. at 28. Additionally, in response to the question, "are there any records, formal ownership records showing the specific ownership interests of each partner in Donbro or basically are your partnership tax returns the only records reflecting distributions, " Buco answered, "[t]he partnership tax returns and the actual distributions that are made every month which is in the same percentage as the tax returns which no one has ever objected to." Id. at 45-46. Because the Partnership Agreement requires that "[t]he net profits of the partnership shall be divided among the partners . . . in the respective percentages set forth in the [Partnership Agreement], " Partnership Agreement Art. 6, and because the net profits of the partnership are not divided in the respective percentages set forth in the Partnership Agreement, compare Partnership Agreement Art. 5 with Deposition of Robert Buco at 26, Martha argues that Buco's testimony evidences ...