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Mendes v. Factor

Superior Court of Rhode Island

January 8, 2018

AMBROSE C. MENDES, JR., ET AL.
v.
ALFRED FACTOR and KIRSHENBAUM & KIRSHENBAUM

         Providence County Superior Court

          For Plaintiff: Ambrose C. Mendes, Jr., Pro Se Patrick J. McBurney, Esq.

          For Defendant: Robert M. Brady, Esq. Joseph F. Penza, Jr., Esq.

          DECISION

          KEOUGH, J.

         This matter is before the Court on Plaintiff Ambrose C. Mendes, Jr.'s (Ambrose[1] 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.

         I Facts and Travel [2]

         Plaintiff's 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[3] (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. Id.

         The 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 estate." Id.

         Mr. 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.

         Plaintiff 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 997-98.

         Additionally, 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. Id.

          No 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[4] 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.

         In the 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." Id.

         The 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.

         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 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.

         On 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 ...


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