197 A.3d 1282
R.I.2018Background
- Yolanda and Ida D’Amore, residents of Cedar Crest in Cranston, became subjects of guardianship proceedings in 2014 initiated by their niece and nephew, Barbara Neri and Donald D’Amore.
- Attorney Martin Malinou claimed to be the sisters’ attorney-in-fact and to represent them in the guardianship proceedings; discovery revealed suspicious banking activity and that $133,107.33 had been transferred to Malinou’s possession without notice to defendants.
- The Cranston Probate Court removed Malinou as attorney-in-fact and appointed the defendants permanent co-guardians after finding the sisters could not manage their finances.
- Malinou filed petitions to probate each sister’s will in Providence Probate Court; those petitions were dismissed for lack of jurisdiction/venue because the sisters were Cranston residents when they died.
- Malinou appealed multiple probate and probate-related orders to Superior Court; the Superior Court repeatedly ordered him to deposit $133,107.33 (he ultimately deposited $100,000) and to provide a full accounting, and held him in contempt for failing to deposit the remaining $33,107.33.
- After continued noncompliance, the Superior Court dismissed (Rule 41(b)(2)) Malinou’s appeals; the Supreme Court affirmed the dismissal and remanded for consideration of sanctions under Rule 11.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Superior Court abused its discretion by dismissing Malinou’s appeal under Super. R. Civ. P. 41(b)(2) | Malinou contends dismissal was improper because underlying probate orders were void and he had defenses (e.g., inability to pay) | Defendants argued dismissal was justified by Malinou’s repeated failure to comply with court orders (deposit funds, accounting) which delayed proceedings | Affirmed: dismissal was within discretion given prolonged noncompliance and prior contempt order |
| Whether Malinou was obligated to disclose/return funds given alleged void guardianship | Malinou argued guardianship decrees were void so he was not required to disclose or return the $133,107.33 | Defendants relied on probate findings and procedural rulings showing removal and guardianship were properly entered and funds should be accounted for | Court did not reach merits of guardianship validity on appeal; focused on dismissal for noncompliance |
| Whether jury trial was required to decide decedent’s residency for probate venue | Malinou argued factual determination of residency required a jury | Defendants maintained procedural venue determination did not require a jury | Court limited review to dismissal for noncompliance and did not reach this substantive contention |
| Whether inability to pay is a defense to contempt/order to deposit funds | Malinou asserted inability to pay excuses noncompliance | Defendants argued Malinou previously represented he had funds and later failed to account for or deposit remaining balance | Held: Superior Court reasonably found Malinou’s earlier representations undermined an inability-to-pay defense; dismissal appropriate |
Key Cases Cited
- Nye v. Brousseau, 102 A.3d 627 (R.I. 2014) (affirming dismissal under Rule 41(b)(2) for failure to comply with court order)
- In re Estate of Ross, 131 A.3d 158 (R.I. 2016) (consolidated actions remain distinct for appeal; separate filing fees required)
- Illas v. Przybyla, 850 A.2d 937 (R.I. 2004) (filing fee is condition precedent to a perfected appeal)
- Martin v. Lilly, 505 A.2d 1156 (R.I. 1986) (appeal procedures and filing fee requirements)
- Bucci v. Hurd Buick Pontiac GMC Truck, LLC, 85 A.3d 1160 (R.I. 2014) (issues not meaningfully briefed are deemed waived)
- State v. Chase, 9 A.3d 1248 (R.I. 2010) (same principle on waiver for inadequate briefing)
- In the Matter of Malinou, 172 A.3d 774 (R.I. 2017) (disciplinary proceeding finding Rule 1.15 violations and suspending Malinou’s license)