Mendes v. Factor
41 A.3d 994
| R.I. | 2012Background
- Decedent Ambrose Mendes, Sr. executed a 1976 will creating a trust for his three children with coexecutors Mauricio and Factor; Kirshenbaum as successor trustee and Factor’s successor trustee with broad management powers over the trust estate.
- Upon Ambrose, Sr.'s death in 1976, his probate estate and Intersection Realty/Mendes Funeral Home assets were to be managed for the three children until the youngest reached 30, at which point the trust would terminate and assets distributed equally.
- Plaintiffs allege that before death, decedent directed transfer of interests in Intersection Realty and Mendes Funeral Home to the children, but documents to validate ownership were never submitted to the Secretary of State, and a 1977 meeting appointed Factor to key roles at Intersection Realty.
- Accounting from 1979-1981 showed substantial assets and later alleged mismanagement: sales below fair market value, failure to maintain insurance, unpaid taxes, and inadequate accounting to the children; plaintiffs claim a trust was never created as required by the will.
- After a long Probate Court hiatus, a March 3, 2009 consent order framed issues for appeal under §33-23-1(f), allowing an appeal to Superior Court; Ambrose signed the claim of appeal while Victor and Madonna did not properly sign.
- Superior Court dismissals in 2010 held that Victor and Madonna’s probate appeal and the verified complaint were dismissed, while Ambrose’s probate appeal was vacated for further proceedings consistent with the Rhode Island Supreme Court’s reasoning.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Victor and Madonna perfected their probate appeal | Victor/Madonna filed via consent order; should be appellants under §33-23-1(f). | Ambrose alone perfected the appeal under §33-23-1(a)(1). | Victor and Madonna did not properly file the appeal; Ambrose was the proper appellant. |
| Whether the consent order satisfies the reasons-of-appeal requirement | Consent order framed and attached to the appeal satisfies §33-23-1(a)(2). | Consent must still comply with §33-23-1(a)(2) despite §33-23-1(f); still valid if properly filed. | Consent order satisfied the reasons-of-appeal requirement; Ambrose’s appeal perfected. |
| Whether the verified complaint was barred by statutes of limitations | Discovery and continuing representations modalities toll the limitations period. | No tolling applies; conduct occurred by 1987; claims time-barred. | Claims are time-barred; no continuing-course or continuing-representation tolling; discovery rule not applicable. |
Key Cases Cited
- Pettis v. Cuddy, 828 A.2d 521 (R.I. 2003) (motions to dismiss probate appeals use Rule 12(b)(6) standard)
- Barrette v. Yakavonis, 966 A.2d 1231 (R.I. 2009) (Rule 12(b)(6) standard for dismissals; focus on pleading sufficiency)
- St. James Condominium Association v. Lokey, 676 A.2d 1343 (R.I. 1996) (clarifies standard for evaluating dismissals under Rule 12(b)(6))
- Cannon v. McEnanley, 21 R.I. 60, 41 A. 1016 (1898) (purpose of reasons of appeal is to notify adverse party of grounds)
- Giulietti v. Giulietti, 784 A.2d 905 (Conn. App. 2001) (continuing course of conduct doctrine as applicable in some jurisdictions)
- Sharkey v. Prescott, 19 A.3d 62 (R.I. 2011) (discovery-rule exception in legal-malpractice context)
- Canavan v. Lovett, Schefrin and Harnett, 862 A.2d 778 (R.I. 2004) (discovery rule applied to latent injuries in malpractice actions)
- Feddersen v. Garvey, 427 F.3d 108 (1st Cir. 2005) (continuing representation doctrine considered in federal courts)