County Superior Court
Plaintiff: Martin S. Malinou, Esq.
Defendants: Jodi M. Gladstone, Esq., Frank S. Lombardi, Esq.
Robert E. Craven, Esq.
Barbara Neri and Donald D'Amore, individually and as
co-guardians of Ida D'Amore and Yolanda D'Amore, as
well as Robert E. Craven, Esq., on behalf of Ida D'Amore
(collectively, Appellees), pursuant to Super. R. Civ. P.
41(b)(2) (Rule 41(b)(2)), bring this motion to dismiss five
consolidated probate appeals brought by Martin Malinou (Mr.
Malinou or Appellant) from decisions of both the Cranston
Probate Court and the Providence Probate Court. Appellees
also bring a motion for the release and transfer of the
probate files of decedents Ida and Yolanda D'Amore (the
D'Amore sisters) currently held by the Providence Probate
Court to the Cranston Probate Court. For the reasons set forth
herein, this Court grants Appellees' motions and hereby
dismisses all five of Appellant's consolidated appeals
with prejudice. The Court also orders that the D'Amore
sisters' probate files held by the Providence Probate
Court be transferred to the Cranston Probate Court in order
to give the Appellees the opportunity to initiate probate
proceedings in that court.
of the long and vexing history of these cases, the Court will
provide a brief synopsis. The issues before this Court
emanate from five consolidated probate appeals. All of the
appeals were taken by Attorney Martin Malinou. The appeals
involve two sisters, now deceased, Ida and Yolanda
D'Amore. Three of the appeals involve the appointment of
guardians for the D'Amore sisters by the Cranston Probate
Court. That court appointed Barbara Neri and Donald
D'Amore as co-guardians. Ms. Neri and Mr. D'Amore
(collectively, co-guardians) are the niece and nephew and
heirs-at-law of the D'Amore sisters. Mr. Malinou,
alleging that he represented the D'Amore sisters,
appealed the Cranston Probate Court's
decisions-PP-2014-3436 (Guardianship of Yolanda D'Amore),
PP-2014-3437 (Guardianship of Ida D'Amore), and
PP-2015-1580 (Order granting the co-guardians' petition
for issuance of a citation compelling Mr. Malinou to provide
testimony regarding the D'Amore sisters' assets).
Pursuant to G.L. 1956 § 33-23-3, the co-guardians were
able to administer the wards' estates despite the
the D'Amore sisters passed away, Mr. Malinou attempted to
initiate probate proceedings for each in the Providence
Probate Court. Mr. Malinou is named as an alternate executor
in each of the D'Amore sisters' Wills. The Providence
Probate Court found that it lacked jurisdiction because the
D'Amore sisters were domiciled in Cranston, Rhode Island.
Mr. Malinou appealed those decisions to this
Court-PP-2014-4885 (Probate of Yolanda D'Amore's
Will) and PP-2015-1580 (Probate of Ida D'Amore's
Will). As a result of the appeal of the Providence Probate
Court's decisions, the D'Amore sisters' estates
have not been probated.
the course of the proceedings, this Court ordered Mr. Malinou
to deposit funds in his possession belonging to the
D'Amore sisters into the registry of the Court. Although
some of the funds have been deposited, Mr. Malinou has failed
to deposit $33, 107.33 of the D'Amore sisters' money
into the registry of the Court, claiming he is entitled to
the money as an attorney fee. The Court again ordered Mr.
Malinou to deposit the missing funds and provide a detailed
accounting regarding payments and hours spent as the basis of
the alleged fees. Mr. Malinou has not deposited the funds and
has failed to provide sufficient documentation to justify a
legitimate basis regarding his claim that the funds were
taken as a fee. This Court has held Mr. Malinou in contempt
for failing to comply with these orders. The present motions
are based upon Mr. Malinou's failure to comply with the
Ida and Yolanda D'Amore were 93 and 98 years of age,
respectively, at the time these matters first reached the
Superior Court. Both have passed away during the pendency of
this litigation. From 2009 to their deaths, the D'Amore
sisters lived at the Cedar Crest Nursing and Rehabilitation
Centre (Cedar Crest) in Cranston, Rhode Island. According to
Mr. Malinou, soon after arriving at Cedar Crest, Ida and
Yolanda each signed a short form Power of Attorney appointing
him as their attorney-in-fact. See Short Form Power
of Attorney of Ida D'Amore, signed Dec. 5, 2009; Short
Form Power of Attorney of Yolanda D'Amore, signed Nov.
30, 2009. Those documents were notarized by Diane
Laferriere (Ms. Laferriere).
outset of the probate proceedings, the co-guardians alleged
that Cedar Crest representatives approached them in late 2013
or early 2014 with concerns regarding the D'Amore
sisters' well-being. Thereafter, the co-guardians
initiated guardianship proceedings with the Cranston Probate
Court. A hearing date of February 13, 2014 was set to appoint
temporary guardians, and notice of the guardianship
proceedings were hand delivered to both Ida and Yolanda
D'Amore on February 13, 2014. See Certificate of
Notice for Yolanda D'Amore dated Feb. 13, 2014;
Certificate of Notice for Ida D'Amore dated Feb. 13,
2014. Appellees Neri and D'Amore were
subsequently granted appointment as temporary co-guardians of
the D'Amore sisters by the Cranston Probate Court on
February 18, 2014. See Certificate of Appointment
for Yolanda D'Amore dated Feb. 18, 2014; Certificate of
Appointment for Ida D'Amore dated Feb. 18,
March 13, 2014, Mr. Malinou appeared before the Cranston
Probate Court- purportedly representing the D'Amore
sisters-to oppose the temporary guardianship entered on
February 18, 2014. He did not produce a retainer agreement,
but he did submit the aforementioned Short Form Power of
Attorney documents dated from 2009, which were allegedly
signed by each Ida and Yolanda D'Amore. The Probate Court
did not explicitly find these documents insufficient at that
time, but extended the temporary guardianship and continued
the hearing to permit the parties to conduct further
discovery. See March 26, 2014 Order of Cranston
Probate Court. 
parties were heard again before the Cranston Probate Court on
May 8, 2014, when the temporary co-guardians sought an
extension of the temporary guardianship and the compulsion of
financial discovery of Mr. Malinou's records pertaining
to his actions as the D'Amore sisters'
attorney-in-fact. Following that hearing, that Court entered
an order in which it 1) ordered Mr. Malinou to provide
limited specific discovery of financial documents relating to
his representation of the D'Amore sisters; 2) continued
the matter for further hearing on the guardianships for June
26, 2014; 3) extended the temporary co-guardianship of
Appellees Neri and D'Amore; and 4) set the temporary
guardianships' expiration for June 26, 2014. See
May 28, 2014 Order of the Cranston Probate
Court. Notice of the June 26, 2014 hearing and
the petition to appoint Barbara Neri and Donald D'Amore
as co-guardians was provided to the D'Amore sisters by
their former Guardian Ad Litem, Paula Cuculo, at a meeting
with them on June 18, 2014. See Supplemental Report
of Guardian Ad Litem.
June 26, 2014 hearing, Appellees Neri and D'Amore were
appointed co-guardians of the D'Amore sisters.
See June 26, 2014 Order of Cranston Probate Court;
Certificate of Appointment dated June 26, 2014. The Court
also heard the co-guardians' Petition to Remove Mr.
Malinou as attorney-in-fact and to Strike Power of Attorney
at the June 26, 2014 hearing. See July 3, 2014 Order
of Cranston Probate Court. As grounds, the co-guardians
presented evidence of the creation of a Centreville Bank
account-which was separate from the D'Amore sisters'
other known accounts-into which Ms. Laferriere had placed as
much as $200, 000 in funds, purportedly owned by Yolanda
D'Amore. The co-guardians alleged suspicious account
activity linking Ms. Laferriere to instruments drawn to
offset a car registration and property closing in Florida,
among other highly irregular transactions. As stated above,
Ms. Laferriere notarized the so-called power of attorney
authorizing Mr. Malinou to act on the D'Amore
sisters' behalf. Moreover, upon the compulsion of
discovery regarding the account, the account was closed, and
on May 14, 2014, the remaining funds, $133, 107.33, were
transferred to Mr. Malinou rather than the active
co-guardians. See Hr'g Tr. 10:1-6, June 26, 2014
before the Probate Court of the City of Cranston. At the
conclusion of this hearing, the Probate Judge ordered Mr.
Malinou disqualified as counsel for the D'Amore sisters
and found that, given the present condition of the
D'Amore sisters, they could not have entered into an
attorney-client relationship. July 3, 2014 Order of Cranston
Probate Court at ¶¶ 1-2. Though the Probate Judge
did question whether Mr. Malinou ever rightfully possessed
that fiduciary power, the Court declined to rule on that
point. Id. These decisions were appealed by Mr.
Malinou to the Superior Court (discussed infra).
to Yolanda's death, Mr. Malinou brought a Petition to
Probate her Will in the Providence Probate Court on September
9, 2014. See September 16, 2014 Order and Decision
of Providence Probate Court. After Appellees Neri and
D'Amore objected to the jurisdiction of the Providence
Probate Court, the Court found that it lacked jurisdiction to
hear the matter based on the facts presented and directed
that the Petition be filed in the Probate Court of Cranston.
Id. Specifically, the Court determined that it
lacked jurisdiction because Yolanda D'Amore was domiciled
in Cranston at the time of her death. Mr. Malinou appealed
that decision to the Superior Court.
following year, on June 4, 2015, after the death of Ida
D'Amore, Mr. Malinou brought a Petition to Probate her
Will-again in the Providence Probate Court- and Appellees
Neri and D'Amore again objected based on lack of
jurisdiction. See Petition for Probate of Will, Ida
D'Amore. Specifically, they averred that the
Court had already determined that it lacked jurisdiction when
it dismissed Mr. Malinou's Petition to admit Yolanda
D'Amore's Will for probate on September 16, 2014.
Consequently, on September 3, 2015, the Providence Probate
Court found that it lacked jurisdiction to probate Ida
D'Amore's Will, and dismissed the Petition.
See Compl. ¶ 1. Mr. Malinou yet again appealed
this decision to the Superior Court (discussed
October 21, 2014, this Court heard argument on Mr.
Malinou's motion to stay the transfer of the Petition to
Probate the Will of Yolanda D'Amore from Providence to
Cranston. See Hr'g Tr. 17:10-12, Oct. 21, 2014.
At that time, the Court denied Mr. Malinou's motion to
stay and continued the matter for further hearing.
Id. at 25:24-26:2. It was also at this hearing that
the Court was made aware of $153, 107.33 of the D'Amore
sisters' money that Appellees averred-and Appellant
admitted-had been given to Mr. Malinou. Id. at
19:23-20:4. Moreover, when the parties returned for further
hearing on January 15, 2015, the Court disqualified Mr.
Malinou from representing Ida D'Amore, who was still
alive, finding, inter alia, that a conflict of
interest existed due to Mr. Malinou's potential liability
and possible need to testify as a witness regarding these
missing funds, considering his substantial involvement in
their transfer and whereabouts. See Hr'g Tr.
22:19-24:11, Jan. 15, 2015; see also Order After
January 15, 2015 Hearing. At that point, Attorney Craven
was appointed to represent Ida D'Amore's interests.
parties returned before this Court on February 26, 2015, at
which time Mr. Malinou asserted that a third party-Joe
Vendresca-might have an ownership interest in $20, 000 of the
missing funds. See Hr'g Tr. 11:3-6, Feb. 26,
2015. Additionally, at a subsequent hearing on March 16,
2015, Mr. Malinou stated that he had no ownership interest in
$153, 107, but again averred that there was a legitimate
question regarding what interest two third-parties-Ms.
Laferriere and Mr. Vendresca-might have in the funds.
See Hr'g Tr. 2:2-11; 8:18-22, Mar. 16, 2015.
Considering this, the Court expressed its concern as to why
Mr. Malinou had not filed a motion to deposit those funds
with the Court registry and provided notice to all parties
who might have an interest in them. Id. at 8:1-17.
Consequently, after an additional hearing on May 5, 2015, the
Court issued an Order compelling Mr. Malinou to return the
$153, 107.33 to the registry of the Court by May 10, 2015
(this sum represented the $133, 107.33 that had been
transferred to him by Ms. Laferriere on May 14, 2014 plus an
additional $20, 000 Mr. Malinou had reportedly received from
attorney Michael Fitzpatrick). Notably, Mr. Malinou clearly
indicated both that he understood this Order and that he had
more than $133, 000 worth of the D'Amore sisters'
money in his possession. See May 5, 2015 Order of
the Superior Court; Hr'g Tr. 9:7-25; 12:18-20, May 5
and 26, 2015. It was also at the May 5, 2015 hearing that Mr.
Malinou-for the first time-indicated that he might have a
claim to those funds "as a lien for attorney's
fees" despite previously stating that he had no
ownership interest in any of the subject funds at the March
16, 2015 hearing. Id. at 6:17-19.
matter returned before the Court on May 26, 2015, at which
point Mr. Malinou had yet to deposit the funds into the
registry of the Court, stating that he did not understand
that the Court had ordered it be done by May 10, 2015-in
spite of his clear indication that he understood the
Court's order at the prior hearing. Id. at
18:19-19:4. He did, however, indicate once again that the
amount of $133, 000 could be deposited. Id. at
19:5-8; 21:14-18. Consequently, the Court ordered Mr. Malinou
to deposit the money within two days (an order he once again
indicated he understood) and directed the parties to return
on May 28, 2015. Id. at 20:11-20. On May 28,
2015, Mr. Malinou indicated that he had deposited only $100,
000 into the Court registry and that he no longer had any of
the additional funds that had been given to him from Ms.
Laferriere, despite indicating at the May 5, 2015 hearing
that he had "something more" than $133, 000 of the
D'Amore sisters money, and again stating at the May 26,
2015 hearing-two days prior-that he could deposit the $133,
157.33 in question. See Hr'g Tr. 1:18-3:18, May
28, 2015. The Court then proceeded to question Mr. Malinou
about his involvement with any money and/or bank accounts
that originated from the D'Amore sisters and why he had
failed to deposit the full amount despite the Court's
clear order to do so. Id. at 7:15-11:6. Upon
completion of that questioning, the Court again 1) ordered
Mr. Malinou to provide a detailed accounting of all of the
funds that came into his possession via the D'Amore
sisters and 2) referred the matter to the disciplinary
counsel based on Mr. Malinou's failure to follow the
Court's orders and due to the Court's concern over
the missing $33, 107.33. See Order After May 28,
parties returned, yet again, on June 11, 2015. At that point,
Mr. Malinou again averred that he had used the missing $33,
107.33 to cover legal fees stemming from his representation
of the D'Amore sisters-despite failing to indicate that
he had done so at the previous hearings when the Court
initially ordered the full amount to be deposited.
See Hr'g Tr. 4:20-5:3, June 11, 2015. After
expressing its concerns over Mr. Malinou's forthrightness
regarding the missing funds, the Court ordered him to provide
a detailed explanation of what legal fees he purportedly took
from the missing funds by August 3, 2015; an order which Mr.
Malinou stated he understood. Id. at 13:21-14:17;
see also Order After June 11, 2015
Hearing. The parties returned on August 13, 2015,
and at that time Mr. Malinou had still not provided the
breakdown of his use of the missing funds as the Court had
directed. After again expressing how troubled it was with Mr.
Malinou's failure to comply with its order to provide an
adequate accounting of the missing funds, the Court once more
ordered Mr. Malinou to provide a detailed breakdown of how he
spent the missing funds by September 14, 2015-this time
requiring that copies of checks be appended to support this
breakdown-and engaged in a long, precise and detailed
colloquy with Mr. Malinou to ensure that he understood what
the Court was requiring of him. See Hr'g Tr.
22:10-32:6, Aug. 13, 2015; see also Order -Hearing
of August 13, 2015, signed August 26, 2015. The Court also
warned Mr. Malinou at that time that he was "dangerously
close to being held in contempt" for his repeated
failures to comply with the Court's orders. See
Hr'g Tr. 32:1-6, Aug. 13, 2015.
the matter again returned before the Court on October 23,
2015, the Court reiterated its concerns that Mr. Malinou did
not raise the issue of using part of the missing funds to
cover attorney's fees until the hearing on May 28,
2015-despite having had several opportunities to do so prior
to that date. See Hr'g Tr. 20:22-21:6, Oct. 23,
2015. Furthermore, the Court reviewed the records and copies
of checks Mr. Malinou did provide, and not only found that
they did not account for the missing $33, 107.33 in question
as was ordered, but additionally questioned whether any of
the money taken by Mr. Malinou from the D'Amore sisters
as demonstrated by these records were a legitimate
representation of payment for services rendered. Id.
at 25:3-24.Consequently, because Mr. Malinou had
continued to fail to abide by the Court's orders to
account for the missing funds in question, the Court held Mr.
Malinou in contempt and ordered him to deposit the missing
$33, 107.33 into the Court registry within one week, or be
assessed a penalty of $100 per day for every day he failed to
do so. Id. at 23:9-24:9; see
also Order Amending Order Regarding October 23, 2015
Hearing and Granting Motion to Consolidate, entered on Nov.
30, 2015. On November 2, 2015, the Court held a status
hearing, in which Mr. Malinou indicated he had not yet
deposited the money and was unable to do so. See
Hr'g Tr. 2:22-24, November 2, 2015
matter returned for hearing on May 6, 2016. At that time, Mr.
Malinou had still failed to deposit the missing funds into
the court registry, citing his inability to do so.
See Hr'g Tr. 12:9-13:11, May 6, 2016. The Court
also determined at this hearing that the only reason
remaining for Mr. Malinou to be involved in the probate of
the Wills for the D'Amore sisters was because he had been
named alternate Executor designate due to the deaths of Ida
and Yolanda, who had named each other as primary Executrix in
their Wills. Id. at 15:12-15. The case was then
continued to May 19, 2016 for scheduling purposes. On that
date, the Court set out a schedule for the filing of any
dispositive motions by the parties. Appellees filed the
instant motion to dismiss pursuant to Rule 41(b)(2) due to
Mr. Malinou's failure to comply with the orders of the
Court-as well as the motion to transfer the records from the
Providence Probate Court to the Cranston Probate Court-on
June 2, 2016. Mr. Malinou objected to this motion on June 16,
2016. The Court also heard oral arguments on the following
motions on July 8, 2016.
R. Civ. P. 41, entitled "Dismissal of actions, "
presents several procedural avenues for the disposal of
cases. Most pertinent to the instant case, Rule 41(b)(2)
"(b) Involuntary Dismissal: Effect
"(2) On Motion of the Defendant. On motion of
the defendant the court may, in its discretion, dismiss any
action for failure of the plaintiff to comply with these
rules or any order of court or for lack of prosecution as
provided in paragraph ...