AMBROSE C. MENDES, JR., VICTOR MENDES and MADONNA MENDES
ALFRED FACTOR and KIRSHENBAUM & KIRSHENBAUM INC.
County Superior Court
Plaintiff: Ambrose C. Mendes, Jr., pro se.
Defendant: Joseph F. Penza, Jr., Esq.
Intervenors and Amicus: Bernard R. Jackvony, Esq.; Patrick
John McBurney, Esq.
matter is before the Court on Defendants Alfred Factor and
Kirshenbaum & Kirshenbaum, Inc.'s (jointly
Defendants) Motion for Partial Summary Judgment. Defendants
contend that two counts alleged in the Amended Reasons for
Appeal are barred by res judicata. The Court heard
oral arguments on the motion on June 21, 2016. Additionally,
before the Court is a Motion to Intervene by Madonna and
Victor Mendes, in which oral arguments were held on June 20,
2016. For the reasons stated herein, the Court denies
Defendants' Motion for Partial Summary Judgment and
grants the Motion to Intervene.
father, Ambrose C. Mendes, Sr., executed a Last Will and
Testament on February 3, 1976. Mendes v. Factor, 41
A.3d 994, 997 (R.I. 2012). Under the terms of the will,
Rufino Mauricio (Mr. Mauricio) and Alfred Factor (Mr.
Factor) were appointed as co-executors, and Isidore
Kirshenbaum (Mr. Kirshenbaum) of Kirshenbaum &
Kirshenbaum, Attorneys at Law, Inc. (K&K) was the
successor co-executor. Id. Except for his personal
residence, the will transferred all of Mr. Mendes'
property in trust, to be managed by the trustee. Id.
The trust was established for the benefit of Mr. Mendes'
three children-Ambrose, Madonna, and Victor- with all the
income to be distributed equally between the children, and
when the youngest child reached age thirty, it would
terminate and the trust property would be distributed to the
children in equal shares.
Mendes died on September 30, 1976, and his estate was opened
in the Providence Probate Court the same year. Id.
At the time of his death, Mr. Mendes was the principal of
Intersection Realty Inc. (Intersection Realty), which owned
twenty-three parcels of real estate, including the Mendes
Funeral Home located at 70 Camp Street in Providence.
Id. Plaintiffs allege in their Verified Complaint
that prior to his death Mr. Mendes instructed Mr. Factor and
K&K to transfer his ownership of both Intersection Realty
and the Mendes Funeral Home to his three children. Although
the documents of ownership prepared by Mr. Factor and
notarized by Mr. Mauricio were to be submitted to the Office
of the Secretary of State for validation, the task was never
completed. Id. Further, Plaintiffs aver that on May
27, 1977, without notifying the Mendes children, Mr. Mauricio
and Mr. Factor conducted a meeting at which they appointed
Mr. Factor as president, treasurer, and secretary of
Intersection Realty. Id. On December 4, 1979, the
co-executors filed a first accounting with the Court listing
fifty-five shares of Intersection Realty with a value of
$276, 148 and a "received to date" amount of $570,
404.58, payouts in the amount of $293, 198.61, and a
remaining balance of $277, 205.97. Id. This first
accounting was approved by the Probate Court on September 8,
1981. Id. at 997-98.
also contend that the Defendants sold the land and building
on which the Mendes Funeral Home sat, but not the actual
business. Id. at 998. Plaintiffs further allege that
between February 3, 1976 and May 1987, Defendants sold many
of Intersection Realty's properties below fair market
value, failed to maintain insurance on the properties, and
failed to pay taxes on many of the properties-resulting in
the government selling the properties at tax sales.
docket entries were recorded at Providence Probate Court
regarding the estate from June 2, 1987 until September 8,
2008. On September 8, 2008, Mr. Factor filed an
amendedsecond accounting and also a third and
final accounting. Id. On September 18, 2008, the
three Mendes children objected to the entry of these
accountings and petitioned for a hearing before the Probate
Court to challenge the validity of the accountings.
Id. As a result of this objection, on March 3, 2009
the Probate Court entered a Consent Order pursuant to G.L.
1956 § 33-23- 1(f). Id.
Consent Order, the parties stipulated to an appeal to the
Superior Court, submitted an agreed statement of facts and
issues, and agreed that on appeal the parties would be
allowed to raise additional claims and defenses. Id.
The issues as stated in the Consent Order are as follows:
"a) Whether the fiduciary breached his duties to the
beneficiaries of the estate;
"b) Whether the second and third accountings were
properly allowed by the [P]robate [C]ourt;
"c) Whether the executors had the authority to sell any
assets of Intersection Realty Inc.;
"d) If the executors did have the authority to sell the
assets of Intersection Realty Inc., what monies, if any have
not been accounted for in the Estate of Ambrose Mendes."
on March 3, 2009, a claim of appeal was filed with the
Probate Court, signed only by Ambrose. Id. at 999.
On March 31, 2009, the three Mendes children also filed a
Verified Complaint in the Superior Court alleging breach of
fiduciary duty for failing to follow the trust document and
negligence for breaching the duty of care owed to the
Plaintiffs to carry out the trust document. Id. The
Supreme Court summarized the allegations in the Verified
"Specifically, the breach-of-fiduciary-duty claim
alleged that defendants 'breached said duty by failing to
transfer [decedent's] interests in Intersection
Realty' to plaintiffs 'at any time prior to or after
[their father's] death.' The complaint further
contended that defendants failed to collect rents from the
real estate properties, to account for rents that had been
collected, to pay taxes that became due, or to 'otherwise
manage the said real estate property.' The complaint also
alleged that defendants failed 'to sell the properties
properly or in a commercially reasonable manner, or for their
fair value, ' 'to pay the operating expenses of the
assets, ' which allowed those properties "to become
tax delinquent" and be subject to tax sales, and 'to
properly account for and/or disburse to the [p]laintiffs for
any and all money received.' The negligence claims listed
in the verified complaint alleged that defendants breached a
duty of care owed to plaintiffs by allowing the previously
mentioned acts to occur." Mendes, 41 A.3d at
filed a motion to dismiss the probate appeal contending
Plaintiffs failed to perfect their appeal. Also, Defendants
filed a second motion to dismiss the Verified Complaint
averring the statute of limitations barred the claims.
Id. The motions to dismiss were heard on January 5,
2010 and on January 15, 2010; a hearing justice dismissed
both the probate appeal and Verified Complaint. Id.
Plaintiffs subsequently appealed to the Rhode Island Supreme
Court on February 5, 2010. Id. at 999-1000.
Plaintiffs challenged the hearing justice's findings that
the probate appeal was not perfected and that the Reasons for
Appeal were not properly filed. Id. at 1000.
Further, Plaintiffs challenged the motion justice's
determination that the statute of limitations expired barring
the claims in the Verified Complaint. Id.
Supreme Court first ruled that the hearing judge properly
concluded that Victor and Madonna failed to perfect their
appeals because their signatures were not included on the
claim of appeal. Id. at 1001. Therefore, only
Ambrose's appeal was perfected. Id. Furthermore,
the Court found that Ambrose correctly filed the Reasons of
Appeal by including them within the Consent Order.
Id. at 1003.
the Court also reviewed the dismissal of the Verified
Complaint. The hearing justice held that Plaintiffs'
claim for breach of fiduciary duty was barred by the ten-year
statute of limitations and the negligence was barred by the
three-year limitation for legal malpractice. Id.
Plaintiffs contend that the statutes of limitations were
tolled due to the continuing course of conduct theory and
continuing representation ...