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

December 20, 2018
Supreme Court
No. 2017-5-Appeal.
(PP 14-4885)
Martin Malinou :
v. :
Barbara Neri, Individually and as Permanent :
Co-Guardian of Ida D’Amore, et al.
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2017-5-Appeal.
(PP 14-4885)
Martin Malinou :
v. :
Barbara Neri, Individually and as Permanent :
Co-Guardian of Ida D’Amore, et al.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court. 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,
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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
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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
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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;
1
Malinou has not provided this Court with transcripts from any of the hearings held in Superior
Court on his appeals from the probate courts’ orders. As a result, we rely on the Superior Court
justice’s procedural summary in his written decision, filed on September 2, 2016, dismissing
Malinou’s appeals.
2
Two of the appeals were from the Cranston Probate Court’s orders disqualifying Malinou from
representing each D’Amore sister and granting defendants’ petitions for guardianship over
Yolanda and Ida; one of the appeals was from the Cranston Probate Court’s order granting
defendants’ petition for a citation compelling Malinou to provide testimony about the D’Amore
sisters’ assets; and two of the appeals were from the Providence Probate Court’s orders granting
defendants’ motions to dismiss Malinou’s petitions to probate Yolanda’s and Ida’s wills for lack
of jurisdiction and improper venue.
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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 within one week or be assessed a fine in the amount of $100
for each day that he failed to deposit that balance with the court.3 Status hearings held after the
contempt order issued—on November 2, 2015 and May 6, 2016—came and went; Malinou still
had not deposited the $33,107.33.
In the spring of 2016, defendants filed a motion to dismiss the appeals pursuant to Rule
41(b)(2) for Malinou’s repeated failure to comply with the court’s orders. The Superior Court
granted the motion to dismiss on September 2, 2016. The Superior Court justice also granted
defendants’ motion to order the Providence Probate Court to transfer the D’Amore sisters’
probate records to Cranston Probate Court.4 Final judgment entered on October 18, 2016, and
Malinou timely filed notices of appeal.5
3
The verbal order issued at the hearing on October 23, 2015, was memorialized in a written
order signed on November 30, 2015.
4
The Superior Court justice also opened a separate cause of action to monitor the status of his
order finding Malinou in contempt for his failure to deposit the $33,107.33 balance into the
registry of the court—No. PM-2016-3454. No significant activity has registered in this case
since it opened.
5
The complaints filed with this Court’s Disciplinary Counsel were investigated by the
Disciplinary Board, which recommended a minimum ninety-day suspension of Malinou’s license
to practice law, with reinstatement of his license only after he deposits the $33,107.33 balance
into the registry of the court. After this Court directed Malinou to show cause why we should
not adopt the Disciplinary Board’s recommendation and considered the matter at a conference
held in October 2017, we issued an order agreeing with the Disciplinary Board’s conclusion that
Malinou had violated Article V, Rule 1.15 of the Supreme Court Rules of Professional Conduct
when he did not notify defendants about the local bank account he knew was held by the
D’Amore sisters and LaFerriere and that LaFerriere had closed the account during the pendency
of the guardianship proceedings and given the proceeds to Malinou. In the Matter of Malinou,
172 A.3d 774, 774-76 (R.I. 2017) (mem.). This Court adopted the Disciplinary Board’s
recommendation and ordered a minimum ninety-day suspension from the practice of law, with
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II
Standard of Review
We review a Superior Court justice’s dismissal of a civil action based on the failure of a
plaintiff to comply with a court’s order(s) for abuse of discretion. See Nye v. Brousseau, 102
A.3d 627, 630 (R.I. 2014); Super. R. Civ. P. 41(b)(2).
III
Discussion
In his prebriefing statement, Malinou challenges all of the probate court orders, primarily
arguing that the initial temporary guardianship decrees for Yolanda and Ida entered in the
Cranston Probate Court were void when issued because the determinations were both
substantively and procedurally unsound. He asserts that, as a result, there was not a proper
guardianship in place for the D’Amore sisters when he received the $133,107.33, so he was not
obligated to disclose these funds either to defendants or to the probate court. With respect to his
appeal from the Providence Probate Court’s dismissal of his petition to probate Yolanda’s will,
Malinou argues that a jury trial is required to make a factual determination regarding whether
Yolanda resided in Cranston or Providence at the time of her death. He also asserts that his
inability to pay is a complete defense to his failure to comply with the Superior Court’s contempt
order.6 He does not challenge the contempt order itself, only the dismissal of his appeals.
reinstatement only after Malinou deposited the $33,107.33 balance into the registry of the court.
Id. at 776.
6
Malinou also raises a question about whether he has an attorney lien on the $100,000 deposited
into the registry of the court, as provided in G.L. 1956 § 9-3-2, but he does not provide any
argument about this issue. “Generally, we will consider an issue to be waived when a party
‘[s]imply stat[es] an issue for appellate review, without a meaningful discussion thereof or legal
briefing of the issues * * *.’” Bucci v. Hurd Buick Pontiac GMC Truck, LLC, 85 A.3d 1160,
1170 (R.I. 2014) (alterations in original) (quoting State v. Chase, 9 A.3d 1248, 1256 (R.I.
2010)).
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Prior to considering Malinou’s arguments before us, we must determine the proper scope
of our review of the Superior Court’s dismissal of Malinou’s five probate court appeals. While
Malinou filed a notice of appeal in each of the Superior Court cases, along with five motions to
proceed in forma pauperis, there is no dispute that he paid only one filing fee after a Superior
Court justice denied his motions to proceed in forma pauperis. Regardless, Malinou urges this
Court to review the Superior Court’s decision and judgment as it relates to all five of his probate
court appeals.
It is well settled that causes of action may be consolidated for judicial economy when the
actions involve common law and facts, but that the consolidated matter does not merge into a
single cause of action. Instead, the causes of action “remain distinct throughout trial and in the
event of an appeal, a notice of appeal must be filed for each action.” In re Estate of Ross, 131
A.3d 158, 159 n.2 (R.I. 2016) (quoting State Water Resources Board v. Howard, 729 A.2d 712,
714 (R.I. 1999)). It is equally well settled that a condition precedent to a valid, perfected appeal
is to pay the required filing fee. Illas v. Przybyla, 850 A.2d 937, 943 (R.I. 2004); Martin v. Lilly,
505 A.2d 1156, 1160 (R.I. 1986); Article I, Rule 3 of the Supreme Court Rules of Appellate
Procedure. A filing fee is therefore required for each separate notice of appeal.
Here, Malinou filed five separate notices of appeal; but, after his motions to proceed in
forma pauperis were denied by the Superior Court, he paid only the filing fee for the notice of
appeal from No. PP-2014-4885. This particular cause of action represented Malinou’s appeal
from a decree of the Providence Probate Court in case No. 2014-337, denying Malinou’s petition
to probate Yolanda’s will due to lack of jurisdiction and improper venue. Malinou’s appeal from
this probate court decree to the Superior Court ended with an involuntary dismissal pursuant to
Rule 41(b)(2); therefore, the only issue properly before us for review is whether the Superior
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Court justice abused his discretion when he dismissed this probate court appeal for Malinou’s
failure to comply with the court’s orders. We therefore do not reach any of the Superior Court
justice’s substantive findings and legal conclusions with respect to any of Malinou’s probate
court appeals.
Rule 41(b)(2) provides, in relevant part, that “[o]n 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 * * *.” A dismissal under this rule “operates as an adjudication upon the merits[,]”
unless the court specifies otherwise. Super. R. Civ. P. 41(b)(3). We have not had many
occasions to review a dismissal of a cause of action pursuant to Rule 41(b)(2).7 In Nye, however,
we affirmed the Superior Court’s dismissal of a quiet-title claim after the plaintiff had repeatedly
disregarded the court’s order to obtain a title abstract on the property in question from a title
examiner. Nye, 102 A.3d at 630.
In the case at bar, it is our opinion that the Superior Court justice properly exercised his
discretion in dismissing Malinou’s appeal from the probate court decree dismissing his petition
to probate Yolanda’s will. The Superior Court justice was clearly concerned from the outset of
the appeals that a portion of the deceased’s assets were potentially improperly in Malinou’s
possession. The Superior Court justice provided several opportunities for Malinou to deposit the
$33,107.33 balance into the registry of the court, continuing the probate appeal proceedings
many times in reasonable anticipation of Malinou’s compliance with the court’s orders.
7
After the 1995 amendment to this rule removed the language allowing a defendant in a nonjury
trial to move for dismissal at the close of the plaintiff’s evidence, most of the appeals from
judgments dismissing cases pursuant to Rule 41(b)(2) of the Superior Court Rules of Civil
Procedure involve a plaintiff’s lack of prosecution of the case or failure to effectuate service of
process within the required time frame. See, e.g., Duffy v. Town of West Warwick, No. 2017-132-
Appeal, 2018 WL 6318549, at *3 (R.I. Dec. 4, 2018); Cotter v. Dias, 130 A.3d 164, 168 (R.I.
2016); Lindia v. Nobles, 760 A.2d 1244, 1245 (R.I. 2000); Jaramillo v. Cathern & Smith, Inc.,
701 A.2d 817, 817 (R.I. 1997) (mem.).
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Malinou’s refusal to comply with such orders clearly delayed the consideration of his issues
within each of the probate court appeals.
With respect to Malinou’s contention that he is unable to pay the $33,107.33 balance, the
Superior Court justice’s decision reflects that, when Malinou was first ordered to deposit the
money into the registry of the court, he represented to the court that he had the money.
Eventually, he claimed that he did not have the money, but he did not tell the court that he was
unable to pay this sum at all. After two years of regular hearing dates but no compliance from
Malinou with the Superior Court’s orders to deposit the remaining $33,107.33 into the registry of
the court, even after the Superior Court had held him in contempt, the decision to grant
defendants’ motion to dismiss Malinou’s appeal was amply justified. See Nye, 102 A.3d at 630.
The defendants request that this Court impose sanctions on Malinou pursuant to Rule 11
of the Superior Court Rules of Civil Procedure for what they consider his frivolous appeal and
his deliberate efforts to delay the administration of the D’Amore sisters’ estates. We are
concerned that Malinou’s representations to the probate courts, the Superior Court, and our Court
may not have all been as forthcoming as our rules of procedure require. We therefore remand
this case to the Superior Court to allow the defendants an opportunity to file a motion for
sanctions, if they so choose.
IV
Conclusion
For the reasons stated herein, we affirm the judgment of the Superior Court and remand
the record of this case to the Superior Court.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Martin Malinou v. Barbara Neri, Individually and as
Title of Case
Permanent Co-Guardian of Ida D’Amore, et al.
No. 2017-5-Appeal.
Case Number
(PP 14-4885)
Date Opinion Filed December 20, 2018
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Providence County Superior Court
Judicial Officer From Lower Court Associate Justice Brian Van Couyghen
For Plaintiff:
Martin Malinou, Pro Se
Attorney(s) on Appeal
For Defendants:
Frank S. Lombardi, Esq.
SU-CMS-02A (revised June 2016)