CRAIG DONATELLI, EXECUTOR OF THE ESTATE OF A. EDMUND DONATELLI Plaintiff,
RICHARD DONATELLI, BARBARA McPHERSON, LEE ANN SISAK, LYNNE CONCEISON, MARILYN DONATELLI, ME DONATELLI TRUST fbo JENNA DONATELLI, MARILYN DONATELLI, TRUSTEE ME DONATELLI TRUST fbo VINCENT DONATELLI, MARILYN DONATELLI, TRUSTEE AND MARTHA DONATELLI, in their Capacity as PARTNERS OF DONBRO REALTY ASSOCIATES Defendants.
County Superior Court
Plaintiff: Thomas A. Tarro, III, Esq.
Defendant: Michael A. Kelly, Esq. Robert A. Mitson, Esq.
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.
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.
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.
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.
Standard of Review
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).
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.
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 ...