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Malinou v. Neri

Supreme Court of Rhode Island

December 20, 2018

Martin Malinou
v.
Barbara Neri, Individually and as Permanent Co-Guardian of Ida D'Amore, et al.

          Providence County Superior Court (PP 14-4885) Associate Justice Brian Van Couyghen judge.

          For Plaintiff: Martin Malinou, Pro Se

          For Defendants: Frank S. Lombardi, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          PAUL A. SUTTELL CHIEF JUSTICE.

         The plaintiff, Martin Malinou, ostensibly acting as successor executor for the wills of two former clients, is appealing from the Superior Court's judgment dismissing his probate court appeals for his failure to comply with several court orders. This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

         I Facts and Procedural History

         The travel of the case begins with two sisters living at Cedar Crest Nursing and Rehabilitation Centre in Cranston (Cedar Crest): Yolanda and Ida D'Amore. According to Malinou, each sister appointed him as her attorney-in-fact by signing a Short Form Power of Attorney soon after they moved from their home in Providence to Cedar Crest in 2009 and then, in 2014, asked him to represent them in the Cranston Probate Court's guardianship proceedings that had been initiated by their niece and nephew, the defendants Barbara Neri and Donald D'Amore. The defendants had initiated the proceedings in early 2014 after staff from Cedar Crest expressed concerns about the sisters' abilities to make financial decisions for themselves. Malinou's subsequent truculent and tortuous pursuit of his contention that the D'Amore sisters were not in need of legal guardians during the final months of their lives has wound its way through the probate courts of two cities, the Providence County Superior Court, and our Court.

         On February 18, 2014, a Cranston Probate Court judge appointed defendants as temporary co-guardians of Yolanda and Ida. On March 13, 2014, Malinou appeared in the probate court to oppose the temporary guardianship status, asserting that the D'Amore sisters had asked him to represent them; however, he was unable to produce any documentation-such as a retainer agreement-to support his assertion. The probate judge continued the guardianship proceedings to allow the parties to conduct discovery, the parameters of which were set during the hearing. At a control date hearing on May 8, 2014, the probate judge reviewed some discovery questions and concerns, then set a date for a contested permanent guardianship hearing.

         Before the next hearing, defendants filed a petition to remove Malinou as attorney-in-fact for the D'Amore sisters because discovery had uncovered suspicious banking activity in an account held by the sisters and Diane LaFerriere, an associate of Malinou's. The latest account activity had been to close the account entirely. On May 10, 2014, the final balance of $133, 107.33 was transferred to Malinou without providing any notice to defendants. Counsel also forwarded the petition to remove to the Supreme Court's Disciplinary Counsel and to the Rhode Island State Police Financial Crimes Unit. Around that same time, Malinou filed a petition for a writ of certiorari asking this Court to review the Cranston Probate Court's award of temporary guardianship; the petition was ultimately denied.

         The probate court considered the petition to remove Malinou and the contested guardianship at a hearing held on June 26, 2014. After a long discussion about the suspicious banking activity, wherein Malinou represented to the probate court that he had deposited the $133, 107.33 into his client account, the probate court granted defendants' petition to remove Malinou as counsel for their wards. After reviewing the evidence indicating that the D'Amore sisters were unable to look after their financial affairs and finding that Malinou had not provided any evidence to the contrary, the probate court appointed defendants to be permanent co-guardians of the D'Amore sisters.

         Shortly thereafter, on July 26, Yolanda passed away. Within a few days, Malinou filed a petition to probate her will in the Providence Probate Court and proposed that he be named executor pursuant to the terms of her will. The defendants filed motions to dismiss the petition for lack of jurisdiction, to transfer venue to the Cranston Probate Court, and to remove Malinou as proposed executor of the will. The Providence Probate Court dismissed Malinou's petition without prejudice for lack of jurisdiction because Yolanda was a resident of Cranston (not Providence) at the time of her death. A decree to this effect entered on September 16, 2014. Ida passed away on May 31, 2015; an identical sequence of events transpired, resulting in a decree dismissing Malinou's petition to probate Ida's will for the same reasons. Malinou appealed from the Providence Probate Court's decrees as well as from the orders issued by the Cranston Probate Court.

         A justice of the Providence County Superior Court first encountered the parties in this case in October 2014, when he heard argument on Malinou's motion to stay the Providence Probate Court's impending transfer of the petition to probate Yolanda's will to the Cranston Probate Court.[1] At that hearing, Malinou admitted he had received at least $133, 107.33 of the D'Amore sisters' money. The Superior Court justice subsequently consolidated all five of Malinou's probate court appeals and held several hearings over the next two years related to the various issues raised in and by those appeals.[2] The Superior Court justice ultimately dismissed the appeals pursuant to Rule 41(b)(2) of the Superior Court Rules of Civil Procedure due to Malinou's repeated refusals to comply with the orders of the Superior Court. The following summary of the proceedings in Superior Court therefore focuses on those orders-all of which relate to the money Malinou received and retained from the D'Amore sisters prior to their deaths.

         The Superior Court held eight hearings between February and November 2015, at which the court repeatedly ordered Malinou to deposit the $133, 107.33 into the Registry of the Superior Court. While Malinou twice assured the court that he could deposit this sum, he deposited only $100, 000 after the fourth hearing at which this money was discussed. At the fifth hearing, he claimed that he no longer had any additional funds. The Superior Court ordered Malinou to provide a detailed accounting of all of the D'Amore sisters' money that had come into his possession, and the court referred the matter to this Court's Disciplinary Counsel. Malinou failed to comply with two separate orders directing him to provide a full accounting of the funds; when he finally provided some records and copies of checks, these did not account for the full missing $33, 107.33. Eventually, in October 2015, the Superior Court justice held Malinou in contempt for his repeated failure to deposit the $33, 107.33 balance into the registry of the court, ordering him to deposit the money ...


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