AMBROSE C. MENDES, JR., ET AL.
ALFRED FACTOR and KIRSHENBAUM & KIRSHENBAUM
County Superior Court
Plaintiff: Ambrose C. Mendes, Jr., Pro Se Patrick J.
Defendant: Robert M. Brady, Esq. Joseph F. Penza, Jr., Esq.
matter is before the Court on Plaintiff Ambrose C. Mendes,
Jr.'s (Ambrose or Plaintiff) motion to amend the reason
for appeal and to have the Consent Order heard. Alfred Factor
(Mr. Factor) and Kirshenbaum & Kirshenbaum, Attorneys at
Law, Inc. (K&K) (jointly, Defendants) contend that the
new counts alleged in Plaintiff's motion are barred by
res judicata and also, in the alternative, by their
applicable statute of limitations. Defendants further contend
that any allegations of negligence or breach of fiduciary
duty stemming from actions prior to 1987 are subject to
res judicata based on the prior Rhode Island Supreme
Court ruling in this case. Ambrose's siblings, Victor
Mendes (Victor) and Madonna Mendes (Madonna) (jointly,
Intervenor Plaintiff and Intervenor Plaintiffs), do not
object to the instant motion.
Facts and Travel 
father, Ambrose C. Mendes, Sr. (Mr. Mendes), 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 Mr. Factor were
appointed as co-executors, and Isidore Kirshenbaum (Mr.
Kirshenbaum) of K&K was the successor co-executor.
Id. Except for his personal residence, the will
transferred all of Mr. Mendes' property into a trust, to
be managed by the trustee. Id. Mr. Mauricio was
named as trustee, Mr. Factor as successor trustee, and Mr.
Kirshenbaum was named as Mr. Factor's successor trustee.
trust was established for the benefit of Mr. Mendes'
three children- Ambrose, Madonna, and Victor- with the net
income to be distributed equally between the children.
Furthermore, the trust provided that when the youngest child
reached age thirty, the trust would terminate and the trust
property would be distributed to the children in equal
shares. Id. In the interim, the will granted the
trustee full authority to "manage and control the trust
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, Inc. (Mendes Funeral Home) located at 70 Camp
Street in Providence. Id.
and Intervenor Plaintiff and Intervenor Plaintiffs alleged in
a Verified Complaint that Mr. Mendes, prior to his death,
instructed Mr. Factor and K&K to transfer his ownership
of both Intersection Realty and the Mendes Funeral Home to
his three children. Id. They further alleged that
the requisite 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 but that the
task was never accomplished. Id. Further, Plaintiff
and Intervenor Plaintiffs aver that without their knowledge,
Mr. Mauricio and Mr. Factor conducted a meeting on May 27,
1977, at which time 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 Probate Court listing fifty-five shares
of Intersection Realty with a value of $276, 148, 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
Plaintiff and Intervenor Plaintiffs alleged that Defendants
sold the land and building on which the Mendes Funeral Home
sat, but not the actual business. Id. at 998. They
further maintained 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 in their care, and failed to pay
taxes on many of the properties-resulting in the government
selling the properties at tax sales. Id. Moreover,
they averred that the co-executors failed to ever create the
trust that was called for in Mr. Mendes' will.
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 amended
second accounting and also a third and final accounting.
Id. On September 18, 2008, the Mendes children
objected to the entry of these accountings and petitioned the
Probate Court for a hearing to challenge the validity of the
accountings. Id. Thereafter, 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 conceded that the issues presented
to the Probate Court could not be resolved there and
stipulated to an appeal to the Superior Court. The parties
agreed to submit a statement of facts and issues to be
decided on appeal, including:
"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."
parties further stipulated that each would be allowed to
raise additional claims and defenses in conjunction with the
appeal. Id. Thereafter, on March 3, 2009, and
consistent with the Consent Order, Ambrose filed a claim of
appeal with the Probate Court. Id. Only Ambrose
signed the claim. Id. at 999.
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
Plaintiff and Intervenor Plaintiffs to carry out the trust
document. Id. The Defendants subsequently filed a
motion to dismiss the probate appeal contending Plaintiff and
Intervenor Plaintiffs failed to perfect their appeal.
Id. Also, Defendants moved to dismiss the Verified
Complaint under Rule 12(b)(6) of the Superior Court Rules of
Civil Procedure, maintaining that the statute of limitations
had expired and therefore barred the claims. Id. The
motions to dismiss were heard on January 5, 2010 and January
15, 2010. Id. Subsequently, the hearing justice
dismissed both the probate appeal and Verified Complaint.
Id. Plaintiff and Intervenor Plaintiffs filed a
timely appeal. Id. at 999-1000.
appeal, Plaintiff and Intervenor Plaintiffs challenged the
hearing justice's findings that Victor and Madonna failed
to perfect their appeals in the Superior Court because their
signatures were not included on the claim of appeal and also
that the probate appeal was not perfected because the reasons
for appeal were not properly filed by them. Id. at
1000. Further, they challenged the motion ...