Robideau v. Cosentino
47 A.3d 338
R.I.2012Background
- Attorney Fishbein appeals two Superior Court sanctions orders under Rule 11, plus an award of $13,620 to defendants’ counsel.
- Elder Robideau and Dolores Robideau transferred their home to their son John in 2004 to avoid creditors; they later filed for bankruptcy in 2005 with Cosentino assisting, omitting the transfer.
- Bankruptcy proceedings revealed misrepresentations about the transfer; a fraudulent-transfer claim led John to pay the trustee about $80,000, after which the elder Robideaus sought debt relief.
- John hired Fishbein to file a malpractice claim against Cosentino; the complaint asserted six counts against Cosentino and Renee Cosentino, and Fishbein served extensive discovery requests.
- Defendants moved to dismiss most counts; plaintiffs sought to amend but were denied; sanctions motion was filed January 18, 2008, predicated on lack of factual and legal basis for the claims.
- Hearing on sanctions occurred in 2008; the court found Fishbein failed to exercise reasonable diligence, admitted lack of research, and indicated a pattern of filing similar pleadings; an evidentiary hearing on fees occurred in September 2010, resulting in a $13,620 sanction; Fishbein appealed in October 2010.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of the fee bill as evidence | Fishbein argued the bill was inadmissible hearsay. | Defendants contended the bill was admissible as the basis for sanctions. | Waived; admission not error. |
| Allowing post-hearing memorandum to address billable hours | Fishbein sought a post-hearing brief to contest time entries. | Fishbein had two years’ notice and could have prepared earlier; no basis to vacate sanctions. | Not grounds to vacate; issue waived/not reversible. |
Key Cases Cited
- State v. Figuereo, 31 A.3d 1283 (R.I.2011) (raise-or-waive rule for appellate preservation)
- In re Jazlyn P., 31 A.3d 1273 (R.I.2011) (preservation of trial objections required; timely and appropriate)
- State v. Brown, 9 A.3d 1240 (R.I.2010) (timely objections required; waiver of specific grounds)
- State v. Diefenderfer, 970 A.2d 12 (R.I.2009) (objections must be specific to avoid waiver)
- State v. Ucero, 450 A.2d 809 (R.I.1982) (ground-specific objections; waiver)
- Rice v. State, 38 A.3d 9 (R.I.2012) (issues not raised in brief treated as waived)