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D'Amore v. Neri

Superior Court of Rhode Island

September 2, 2016

IDA D'AMORE and MARTIN MALINOU, APPELLANTS
v.
BARBARA NERI and DONALD D'AMORE, Individually as Petitioners for Guardianship, and as Permanent Co-Guardians of Ida D'Amore APPELLEES YOLANDA D'AMORE and MARTIN MALINOU, APPELLANTS
v.
BARBARA NERI and DONALD D'AMORE, Individually as Petitioners for Guardianship, and as Permanent Co-Guardians of Yolanda D'Amore APPELLEES MARTIN MALINOU, APPELLANT
v.
BARBARA NERI and DONALD D'AMORE, Individually and as Permanent Co-Guardians of Ida D'Amore APPELLEES MARTIN MALINOU APPELLANT
v.
BARBARA NERI and DONALD D'AMORE, Individually and as Permanent Co-Guardians of Ida D'Amore APPELLEES MARTIN MALINOU APPELLANT
v.
BARBARA NERI and DONALD D'AMORE, Individually and as Permanent Co-Guardians of Ida D'Amore APPELLEES

         Providence County Superior Court

          For Plaintiff: Martin S. Malinou, Esq.

          For Defendants: Jodi M. Gladstone, Esq., Frank S. Lombardi, Esq. Robert E. Craven, Esq.

          DECISION

          VAN COUYGHEN, J.

         Appellees 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.[1] For the reasons set forth herein, this Court grants Appellees' motions and hereby dismisses all five of Appellant's consolidated appeals with prejudice.[2] 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.

         I

         Synopsis

         Because 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 appeals.

         After 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.

         During 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 above-referenced orders.

         II

         Facts and Travel

         Sisters 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.[3] 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.[4] Those documents were notarized by Diane Laferriere (Ms. Laferriere).

         At the 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.[5] 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, 2014.[6]

         On 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. [7]

         The 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.[8] 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.[9]

         At that 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.[10] 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.[11] 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.[12] 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).

         Subsequent 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.[13]

         The 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.[14] 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.[15] Mr. Malinou yet again appealed this decision to the Superior Court (discussed infra).

         On 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.[16] At that point, Attorney Craven was appointed to represent Ida D'Amore's interests. Id.

         The 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).[17] 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[18]; 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.

         The 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.[19] 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, 2015 Hearing.[20]

         The 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.[21] 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.

         When 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.[22]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.[23] 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

         The 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.

         III

         Standard of Review

         Super. 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) reads:

"(b) Involuntary Dismissal: Effect Thereof.
"(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 ...

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