Opinion
C. A. PP-2009-1820
09-20-2016
AMBROSE C. MENDES, JR., VICTOR MENDES and MADONNA MENDES v. ALFRED FACTOR and KIRSHENBAUM & KIRSHENBAUM INC.
For Plaintiff: Ambrose C. Mendes, Jr., pro se. For Defendant: Joseph F. Penza, Jr., Esq. For Intervenors and Amicus: Bernard R. Jackvony, Esq.; Patrick John McBurney, Esq.
Providence County Superior Court
For Plaintiff: Ambrose C. Mendes, Jr., pro se.
For Defendant: Joseph F. Penza, Jr., Esq.
For Intervenors and Amicus: Bernard R. Jackvony, Esq.; Patrick John McBurney, Esq.
DECISION
LICHT, J.
This matter is before the Court on Defendants Alfred Factor and Kirshenbaum & Kirshenbaum, Inc.'s (jointly Defendants) Motion for Partial Summary Judgment. Defendants contend that two counts alleged in the Amended Reasons for Appeal are barred by res judicata. The Court heard oral arguments on the motion on June 21, 2016. Additionally, before the Court is a Motion to Intervene by Madonna and Victor Mendes, in which oral arguments were held on June 20, 2016. For the reasons stated herein, the Court denies Defendants' Motion for Partial Summary Judgment and grants the Motion to Intervene.
I
For more details, see Mendes v. Factor, 41 A.3d 994 (R.I. 2012).
Plaintiffs' father, Ambrose C. Mendes, Sr., executed a Last Will and Testament on February 3, 1976. Mendes v. Factor, 41 A.3d 994, 997 (R.I. 2012). Under the terms of the will, Rufino Mauricio (Mr. Mauricio) and Alfred Factor (Mr. Factor) were appointed as co-executors, and Isidore Kirshenbaum (Mr. Kirshenbaum) of Kirshenbaum & Kirshenbaum, Attorneys at Law, Inc. (K&K) was the successor co-executor. Id. Except for his personal residence, the will transferred all of Mr. Mendes' property in trust, to be managed by the trustee. Id. The trust was established for the benefit of Mr. Mendes' three children-Ambrose, Madonna, and Victor- with all the income to be distributed equally between the children, and when the youngest child reached age thirty, it would terminate and the trust property would be distributed to the children in equal shares.
Mr. Mauricio died in 2006. Mendes, 41 A.3d at 997 n.3.
All three children retain the same last name as the decedent-Mendes. In order to avoid confusion, the Court will refer to the children by their first names without meaning any disrespect.
Mr. Mendes died on September 30, 1976, and his estate was opened in the Providence Probate Court the same year. Id. At the time of his death, Mr. Mendes was the principal of Intersection Realty Inc. (Intersection Realty), which owned twenty-three parcels of real estate, including the Mendes Funeral Home located at 70 Camp Street in Providence. Id. Plaintiffs allege in their Verified Complaint that prior to his death Mr. Mendes instructed Mr. Factor and K&K to transfer his ownership of both Intersection Realty and the Mendes Funeral Home to his three children. Although the documents of ownership prepared by Mr. Factor and notarized by Mr. Mauricio were to be submitted to the Office of the Secretary of State for validation, the task was never completed. Id. Further, Plaintiffs aver that on May 27, 1977, without notifying the Mendes children, Mr. Mauricio and Mr. Factor conducted a meeting at which they appointed Mr. Factor as president, treasurer, and secretary of Intersection Realty. Id. On December 4, 1979, the co-executors filed a first accounting with the Court listing fifty-five shares of Intersection Realty with a value of $276,148 and a "received to date" amount of $570,404.58, payouts in the amount of $293,198.61, and a remaining balance of $277,205.97. Id. This first accounting was approved by the Probate Court on September 8, 1981. Id. at 997-98.
Plaintiffs also contend that the Defendants sold the land and building on which the Mendes Funeral Home sat, but not the actual business. Id. at 998. Plaintiffs further allege that between February 3, 1976 and May 1987, Defendants sold many of Intersection Realty's properties below fair market value, failed to maintain insurance on the properties, and failed to pay taxes on many of the properties-resulting in the government selling the properties at tax sales. Id.
No docket entries were recorded at Providence Probate Court regarding the estate from June 2, 1987 until September 8, 2008. On September 8, 2008, Mr. Factor filed an amendedsecond accounting and also a third and final accounting. Id. On September 18, 2008, the three Mendes children objected to the entry of these accountings and petitioned for a hearing before the Probate Court to challenge the validity of the accountings. Id. As a result of this objection, on March 3, 2009 the Probate Court entered a Consent Order pursuant to G.L. 1956 § 33-23- 1(f). Id.
A second accounting was originally filed in 1981, but the Probate Court never approved it.
In the Consent Order, the parties stipulated to an appeal to the Superior Court, submitted an agreed statement of facts and issues, and agreed that on appeal the parties would be allowed to raise additional claims and defenses. Id. The issues as stated in the Consent Order are as follows:
"a) Whether the fiduciary breached his duties to the beneficiaries of the estate;
"b) Whether the second and third accountings were properly allowed by the [P]robate [C]ourt;
"c) Whether the executors had the authority to sell any assets of Intersection Realty Inc.;
"d) If the executors did have the authority to sell the assets of Intersection Realty Inc., what monies, if any have not been accounted for in the Estate of Ambrose Mendes." Id.
Also, on March 3, 2009, a claim of appeal was filed with the Probate Court, signed only by Ambrose. Id. at 999. On March 31, 2009, the three Mendes children also filed a Verified Complaint in the Superior Court alleging breach of fiduciary duty for failing to follow the trust document and negligence for breaching the duty of care owed to the Plaintiffs to carry out the trust document. Id. The Supreme Court summarized the allegations in the Verified Complaint stating:
"Specifically, the breach-of-fiduciary-duty claim alleged that defendants 'breached said duty by failing to transfer [decedent's] interests in Intersection Realty' to plaintiffs 'at any time prior to or after [their father's] death.' The complaint further contended that defendants failed to collect rents from the real estate properties, to account for rents that had been collected, to pay taxes that became due, or to 'otherwise manage the said real estate property.' The complaint also alleged that defendants failed 'to sell the properties properly or in a commercially reasonable manner, or for their fair value, ' 'to pay the operating expenses of the assets, ' which allowed those properties "to become tax delinquent" and be subject to tax sales, and 'to properly account for and/or disburse to the [p]laintiffs for any and all money received.' The negligence claims listed in the verified complaint alleged that defendants breached a duty of care owed to plaintiffs by allowing the previously mentioned acts to occur." Mendes, 41 A.3d at 999.
Defendants filed a motion to dismiss the probate appeal contending Plaintiffs failed to perfect their appeal. Also, Defendants filed a second motion to dismiss the Verified Complaint averring the statute of limitations barred the claims. Id. The motions to dismiss were heard on January 5, 2010 and on January 15, 2010; a hearing justice dismissed both the probate appeal and Verified Complaint. Id. Plaintiffs subsequently appealed to the Rhode Island Supreme Court on February 5, 2010. Id. at 999-1000. Plaintiffs challenged the hearing justice's findings that the probate appeal was not perfected and that the Reasons for Appeal were not properly filed. Id. at 1000. Further, Plaintiffs challenged the motion justice's determination that the statute of limitations expired barring the claims in the Verified Complaint. Id.
The Supreme Court first ruled that the hearing judge properly concluded that Victor and Madonna failed to perfect their appeals because their signatures were not included on the claim of appeal. Id. at 1001. Therefore, only Ambrose's appeal was perfected. Id. Furthermore, the Court found that Ambrose correctly filed the Reasons of Appeal by including them within the Consent Order. Id. at 1003.
Moreover, the Court also reviewed the dismissal of the Verified Complaint. The hearing justice held that Plaintiffs' claim for breach of fiduciary duty was barred by the ten-year statute of limitations and the negligence was barred by the three-year limitation for legal malpractice. Id. Plaintiffs contend that the statutes of limitations were tolled due to the continuing course of conduct theory and continuing representation doctrine; however, the Supreme Court did not find merit in these arguments. Id. The Court agreed with the trial justice because
"[a]ll the facts set forth in the complaint that plaintiffs use to support their allegations of breach of fiduciary duty and negligence allegedly occurred between February 3, 1976, and May 1987. Although the complaint asserts that Factor 'continued to act in some legal capacity, either as fiduciary of [the] estate, officer of Intersection Realty [or] attorney for the [p]laintiffs' and that he presented an amended second, and third and final accounting in 2008, it does not refer to any specific wrongful conduct by him after 1987." Mendes, 41 A.3d at 1004.
Additionally, the Court found that the continuing representation doctrine has not been adopted in Rhode Island, and even if the Court did adopt it, continuing representations would not apply in this case because the actionable conduct occurred more than twenty years before the suit was filed. Id. at 1005. Finally, the Court found that the discovery-rule exception to the statute of limitations did not apply because Plaintiffs were aware of each allegation before 1987 and not required to wait until the final accounting to file a claim for wrongdoing against the trustees. Id. at 1005-6. Ultimately, the Court affirmed the dismissal of Victor and Madonna's probate appeal and the Verified Complaint, but allowed Ambrose's probate appeal to continue. Id. at 1006.
Following the Supreme Court's decision, Ambrose, the sole remaining Plaintiff, continued his probate appeal pro se for several years. Plaintiff later retained an attorney who filed the Amended Reasons for Appeal, which contains two counts: I) Breach of Fiduciary Duty, and II) Negligence. Defendants filed this motion for partial summary judgment alleging that Counts I and II are the very same counts in the Verified Complaint that were dismissed by the lower court and affirmed by the Supreme Court.
The motion for partial summary judgment came before the Court on January 13, 2016. After a hearing, the Court entered an Order to continue the matter until April 5, 2016.
On April 5, 2016, the motion for summary judgment was scheduled to be heard. The morning of the hearing, the Court became aware of a letter sent to the Court by Ambrose informing the Court that he was not satisfied with his attorney's representation and wished to have him withdraw his appearance. The Court continued the matter again until June 21, 2016, with instructions for Ambrose to find another attorney, mend relations with his current attorney, or be prepared to argue pro se. Plaintiff's attorney was also instructed to inform the Court as to whether he would continue to represent Plaintiff and to file proper motions with the Court to determine representation.
The Court received a second letter from Ambrose dated May 2, 2016. In the letter, Ambrose pleaded with the Court for help because he disagreed with his current attorney's representations, but he could not locate or afford another lawyer. Ambrose explained that he does not have the ability to represent himself in this matter, but he still objected to his then attorney representing him. The Court permitted the withdrawal of his attorneys.
On May 11, 2016, Plaintiff's former attorney filed an additional motion to intervene on behalf of Madonna and Victor Mendes. The Court heard arguments on the motion to intervene on June 20, 2016. The Court subsequently reserved judgment on the motion to intervene or, in the alternative, to appoint an administrator ad litem at that time, but allowed Madonna and Victor's attorney to argue, as an amicus, the motion for partial summary judgment. The Court permitted the amicus because the memorandum in opposition to the motion was prepared by this attorney while still representing Ambrose.
On June 21, 2016, the motion for partial summary judgment came before the Court for the third time. Ambrose had not yet located an attorney and entered pro se. After extensive oral arguments, a bench conference was held wherein the Court suggested this case was ripe for mediation. The parties, including Ambrose, agreed to submit to mediation; therefore, the Court reserved decision on the motion for partial summary judgment. Additionally, the Court authorized Ambrose's attorney to withdraw from this matter.
The parties subsequently chose not to mediate. As such, the Court now rules on the motion for partial summary judgment.
The Court engaged in email correspondence with Ambrose, the amicus attorney, and Defendants' attorney to attempt to schedule a time for mediation. From these emails, it became apparent that settlement was no longer an option. At that point, the Court determined it would rule on the pending motion for summary judgment and motion to intervene without attempting to mediate. Ambrose contended in the correspondence that he was not given sufficient opportunity to make an argument before the Court concerning the pending motion for partial summary judgment. This Court notes that Ambrose was given ample time to present his arguments before the Court at the hearing on June 21, 2016. Moreover, the parties were not presented with the option of mediation until after the close of arguments. Based on the briefs, oral arguments, and reviewing the facts of the case, the Court did not require supplementary oral arguments by Ambrose or any other party.
II
Standard of Review
Summary judgment is a harsh and drastic remedy that the Court must use "cautiously." DePasquale v. Venus Pizza, Inc., 727 A.2d 683, 685 (R.I. 1999); Estate of Giuliano v. Giuliano, 949 A.2d 386, 390-91 (R.I. 2008). The burden is on the movant to establish there is "no genuine dispute with respect to the material facts of the case." Giuliano, 949 A.2d at 391. If the movant meets his or her burden, the burden shifts to the nonmovant to "point to [competent] evidence showing that a genuine dispute of material fact does exist." Id. In doing so, "[t]he nonmovant may not rely upon 'mere allegations or denials in the pleadings, mere conclusions or mere legal opinions."' Id. (quoting Tanner v. Town Council of East Greenwich, 880 A.2d 784, 791 (R.I. 2005)) (internal quotation marks omitted).
On summary judgment, the Court "must review the pleadings, affidavits, admissions, answers to interrogatories, and other appropriate evidence from a perspective most favorable to the party opposing the motion." Id. (quoting Steinberg v. State, 427 A.2d 338, 340 (R.I. 1981)). In its review of the evidence, the Court '"must refrain from weighing the evidence or passing upon issues of credibility."' Pichardo v. Stevens, 55 A.3d 762, 766 (R.I. 2012) (quoting Doe v. Gelineau, 732 A.2d 43, 48 (R.I. 1999)). After, if the Court concludes that there are "no issues of material fact" then it may grant summary judgment. Giuliano, 949 A.2d at 391. Finally, the Court notes that the '"purpose of the summary judgment procedure is issue finding, not issue determination."' Id. (quoting Indus. Nat'l Bank v. Peloso, 121 R.I. 305, 307, 397 A.2d 1312, 1313 (1979)).
III
Analysis
A
Motion for Partial Summary Judgment
Defendants argue that Counts I and II of the Amended Reasons for Appeal have already been litigated and dismissed by the Superior and Supreme Courts and thus, res judicata applies. (Mot. for Summ. J. 5.) Defendants include a fact comparison chart, which parallels the 2009 Verified Complaint with the 2015 Amended Reasons for Appeal. Id. at 6-8. Moreover, Defendants aver that even if Plaintiff added more allegations past 1987, res judicata still bars the claims because they could have been litigated before. Defendants conclude that because res judicata bars all claims that have been or could have been previously litigated, Counts I and II must be dismissed. Id. at 10-11.
Plaintiff contends that the Amended Reasons for Appeal are proper because the dismissed claims in the previous lawsuit only included allegations through 1987. (Opp'n Mem. 1.) Moreover, Plaintiff pulls from the language of the original consent order which 1) specifically contemplated a breach of contract and accounting action, and 2) the order preserved the right of the parties to raise additional claims or defenses. Id. at 7. Additionally, Plaintiff argues that the Supreme Court's decision concerned different allegations than brought in the present suit and can be brought along with the claims that survived from the probate appeal. Id. at 7. Furthermore, Plaintiff avers res judicata is inapplicable for the following reasons: 1) the claims do not arise from the same series of transactions as before; 2) the claims in the instant appeal could not have been brought in the Verified Complaint; 3) Defendants knew that Plaintiff had split claims between the probate appeal and Verified Complaint and failed to object; and 4) a dismissal based upon the statute of limitations is not an adjudication on the merits that will have preclusive effect on another action. Id. at 10.
Res judicata "relates to the effect of a final judgment between the parties to an action and those in privity with those parties." E.W. Audet & Sons, Inc. v. Firemen's Fund Ins. Co. of Newark, New Jersey, 635 A.2d 1181, 1186 (R.I. 1994) (citing Providence Teachers Union, Local 958-Am. Fed'n of Teachers, AFL-CIO v. McGovern, 113 R.I. 169, 172, 319 A.2d 358, 361 (1974)). "The doctrine serves as a bar to a second cause of action where there exists: (1) 'identity of parties'; (2) 'identity of issues'; and (3) 'finality of judgment in an earlier action.'" IDC Props., Inc. v. Goat Island S. Condo. Ass'n, Inc., 128 A.3d 383, 389 (R.I. 2015) (quoting Huntley v. State, 63 A.3d 526, 531 (R.I. 2013)). "The principle underlying the rule of [res judicata ] * * * is that a party who once has had a chance to litigate a claim before an appropriate tribunal usually ought not to have another chance to do so." Id. (quoting Huntley, 63 A.3d at 532). Our Supreme Court has stated that, "Our jurisprudence on this issue is quite firm. 'Res judicata bars the relitigation of any issue that could have been litigated in a prior proceeding, including a direct appeal that resulted in a final judgment between the same parties, or those in privity with them.'" Martinez v. State, 128 A.3d 395, 396 (R.I. 2015) (quoting Hall v. State, 60 A.3d 928, 932 (R.I. 2013)); Plunkett v. State, 869 A.2d 1185, 1188 (R.I. 2005) ("Claim preclusion… 'precludes the relitigation of all the issues that were tried or might have been tried in the original suit.'") (Emphasis added.)
Moreover, the Court has held that it has adopted the Restatement's broad approach to res judicata, finding that the preclusive effect of the res judicata doctrine should be applied to "all or any part of the transaction, or series of connected transactions, out of which the action arose." ElGabri v. Lekas, 681 A.2d 271, 276 (R.I. 1996) (quoting 1 Restatement (Second) Judgments § 24) (internal quotation marks omitted); Ritter v. Mantissa Inv. Corp., 864 A.2d 601, 605 (R.I. 2005) (in determining if there is identity of issues, the Rhode Island Supreme Court "adopted the broad 'transactional' rule, " which precludes the re-litigation of 'all or any part of the transaction, or series of connected transactions, out of which the [first] action arose"' (quoting Manego v. Orleans Bd. of Trade, 773 F.2d 1, 5 (1st Cir. 1985))). In determining "[w]hat factual grouping constitutes a 'transaction, ' and what groupings constitute a 'series'" the Court should be "pragmatic[], giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations. . . ." Id. (quoting Manego, 773 F.2d at 5). Also, the Court has found that, "claims that 'could have been brought' are claims in existence at the time the original complaint is filed or claims actually asserted by supplemental pleadings or otherwise in the earlier action." Belliveau Bldg. Corp. v. O'Coin, No. C.A. NO. 90-2812, 1997 WL 839893, at *5 (R.I. Super. Feb. 19, 1997) (quoting Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992)); Bossian v. Anderson, 991 A.2d 1025, 1027 (R.I. 2010) ("The transactional rule provides that 'all claims arising from the same transaction or series of transactions which could have properly been raised in a previous litigation are barred from a later action.'" (quoting DiBattista v. State, 808 A.2d 1081, 1086 (R.I. 2002)).
Finally, in regards to whether there is a final judgment, "[t]he burden is upon the party asserting res judicata to prove that the prior judgment on which it is relying was final." Huntley, 63 A.3d at 532 (quoting 47 Am. Jur. 2d Judgments § 648 at 222 (2006) (internal quotation marks omitted)). When a case is dismissed because the statute of limitations expired, there is a question as to whether this is an adjudication on the merits. 2 Civ. Actions Against State & Loc. Gov't § 12:19 ("Some jurisdictions consider a dismissal for failure to satisfy a statute of limitations to be an adjudication on the merits for purposes of claim and issue preclusion, while others do not."). Rhode Island has not yet reached this issue; however, the majority view is that a judgment dismissing a claim for the statute of limitations running will have preclusive effect. 50 C.J.S. Judgments § 1344 ("Dismissals on various grounds have been held generally to have preclusive effect, such as failure to prosecute, failure to state a claim upon which relief can be granted, lack of standing, and statute of limitations."); see Huntley, 63 A.3d at 532 ("the plain language of Rule 41(b) does not require that the merits of a claim be reached in order for a dismissal to operate[ ] as an adjudication on the merits. Instead, what is required is that the party had an opportunity to be heard.").
In the present case, this Court finds that res judicata does not apply because there is no identity of issues. It is clear that the Amended Reasons for Appeal do not incorporate claims that were previously dismissed by the Supreme Court. See Ritter, 864 A.2d at 605 (quoting Manego, 773 F.2d at 5). As articulated in the Mendes Supreme Court decision, the Verified Complaint alleged facts constituting breach of fiduciary duty and negligence that "occurred between February 3, 1976, and May 1987" although the facts continued through 2008. Mendes, 41 A.3d at 1004. The Amended Reasons for Appeal allege a breach of fiduciary duty and negligence regarding the failure of the Defendants to render a proper accounting-which will not go into the underlying alleged wrongdoings dismissed by our Supreme Court. Instead, if the trier of fact finds that Defendants in fact improperly performed the accounting of the estate, then the Plaintiff can seek additional damages for breach of fiduciary duty in regards to their performance to render a proper accounting, not in relation to the underlying claims. The amicus attorney explained that the issue moving forward is that "there were X number of dollars missing. We don't care where they came from, didn't come from, why it's missing, why it's not missing." Hr'g Tr. 19:1-3, June 21, 2016. Rather, the fact that there is money missing from the trust is the root of the action for the breach of fiduciary duty. As such, as this case proceeds, there will not be relitigation of issues already decided by our Supreme Court. Therefore, the Amended Reasons for Appeal are not part of the same transaction as the previous claims dismissed by the Supreme Court. See Ritter, 864 A.2d at 605.
See In re Estate of Fain, 75 Cal.App.4th 973, 89 Cal.Rptr.2d 618 (1999) ("Objections to [probate] accountings commonly raise surcharge claims against [the] representative for purported acts of misconduct, neglect, waste, mismanagement, or other breach of fiduciary duty."); Sargent v. Sargent, No. PC-08-1429, 2009 WL 3328560, at *22 (R.I. Super. July 31, 2009) (Trustee "breached her fiduciary duty to render accounts and furnish information to the beneficiaries" by ignoring numerous requests from the beneficiaries and a consent order entered by the Court to provide an accounting.).
Moreover, because Ambrose amended his Complaint properly, there is no merit to the assertion that this is an action that could have been brought previously. See Bossian, 991 A.2d at 1027. The Rhode Island Supreme Court determined that Ambrose's probate appeal survived summary judgment. Mendes, 41 A.3d at 999. Furthermore, the Consent Order allows for additional claims and defenses to be raised on appeal. Consent Order ¶ 5. Therefore, because the Court granted Plaintiff's motion to amend his Reasons for Appeal, it is still part of the same litigation and did not have to be brought earlier. Bossian, 991 A.2d at 1027; Sisto v. Am. Condo. Ass'n, Inc., 140 A.3d 124 (R.I. 2016) (finding res judicata inapplicable because there was no second cause of action filed).
Superior Court Rules of Civil Procedure 15(a) provides that a party may amend pleadings after 20 days "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Super. R. Civ. P. 15. The Court heard the motion to amend on September 24, 2015 and granted Plaintiff's request. This is consistent with the Rhode Island Supreme Court's position to "liberally allow amendments to the pleadings" absent a showing of "extreme prejudice." Harodite Indus., Inc. v. Warren Elec. Corp., 24 A.3d 514, 530-31 (R.I. 2011) (denying motion to amend because the of the extreme prejudice due to the "lateness of defendant's motion, its proximity to trial, and the significant work plaintiff would have needed to undertake to prepare for the new legal issue." (quoting Weybosset Hill Invs, LLC v. Rossi, 857 A.2d 231, 237 (R.I. 2004) (internal quotation marks omitted)). Rhode Island even allows parties to amend a pleading after trial. RICO Corp. v. Town of Exeter, 836 A.2d 212, 217 (R.I. 2003) (noting, generally, that a party can amend a pleading even after remand, but not when it is inconsistent with the remand instructions).
As the Court determined res judicata does not apply, it need not reach Plaintiff's other arguments.
B
Motion to Intervene
Victor and Madonna seek to intervene because they contend they are interested persons that can intervene in a probate appeal under § 33-23-8(e). Victor and Madonna argue that they have met their burden of proving that they have an interest in the estate as articulated in Insana v. R.I. Hosp. Trust Co., 110 R.I. 476, 477, 294 A.2d 181, 182 (1972) (motion to intervene was denied because parties did not make a formal motion) because they have the same relationship to the estate as Plaintiff. Victor and Madonna contend that even if they did not perfect their appeal under § 33-23-1, they still have a right to intervene under § 33-23-8(e). In the alternative, Victor and Madonna ask that the Court appoint an administrator ad litem to protect their interests because any recovery will be given to the estate and distributed equally to all three children. Moreover, Victor and Madonna contend that Defendants, as executors of the estate, do not protect their interests because of a clear conflict of interest. Victor and Madonna cite a Florida case with a similar set of facts where the Court allowed the beneficiaries of the trust to intervene to protect their inheritance.
Defendants object to the Motion to Intervene because Victor and Madonna participated as parties in the underlying probate proceeding. First, Defendants contend the Proposed Intervenors should not be permitted to intervene because they are not interested parties under § 33-23-8. Defendants aver that a person who was a party cannot be an interested party, and are properly categorized as "persons aggrieved." Thus, because Victor and Madonna were former parties, they cannot be considered interested parties and are foreclosed from being aggrieved. Moreover, Defendants aver that the appointment of an administrator ad litem is inappropriate for this situation because Plaintiff can no longer pursue his legal malpractice and breach of fiduciary duty claims-thus, there is no conflict of interest. Additionally, Defendants contend that because Victor and Madonna missed their opportunity to participate by not filing their appeal properly, it would circumvent the Supreme Court's holding affirming their dismissal from the case.
Section 33-23-8(e) provides: "The superior court may, upon motion, permit any interested person to intervene in a probate appeal and, upon doing so, is entitled to participate in any and all superior court proceedings concerning the appeal." Sec. 33-23-8(e). An "aggrieved party" must follow the procedures outlined in Section 33-23-1, which the Supreme Court has already determined that Victor and Madonna did not meet. It is clear from case law that "aggrieved party" and "interested party" are not the same. See Apollonio v. Kenyon, 101 R.I. 578, 587, 225 A.2d 778, 784 (1967) ("He was a participant in the proceedings before the Hopkinton probate court and as such his status is governed not by § 33-23-8 but by § 33-23-1."); Robert H. Humphrey, A Primer on Probate Appeals, R.I.B.J., 03-00-98, at 15. Moreover, the Rhode Island Supreme Court explained, "the purpose of § 33-23-8 was to aid the court in the promotion of justice in cases involving the settlement of estates by empowering it to add as parties persons whose interest in an estate is belatedly ascertained as well as those who, because of an interest in an estate, should be made subject to the judgment of the court in order to expedite and terminate such litigation." Apollonio, 101 R.I. at 588, 225 A.2d at 784. "A person seeking to intervene is not accorded standing as a matter of right." Insana, 110 R.I. at 477, 294 A.2d at 182. Before granting a motion to intervene, the Court must find that "'(w)here a person seeks to be added as a party appellant when an appeal is pending and thereby seeks to become a party to that appeal, he must establish that he has an interest in the estate and that he is aggrieved by the decree. The burden of showing this is on the (party seeking to intervene).'" Id. (quoting Spooner v. Tucker, 86 R.I. 266, 273, 134 A.2d 403, 407 (1957)).
Moreover, both in Apollonio and Insana, the Rhode Island Supreme Court has outlined that an interested party cannot be one that already appeared in the case. Apollonio, 101 R.I. at 587, 225 A.2d at 784 ("He was a participant in the proceedings before the Hopkinton probate court and as such his status is governed not by § 33-23-8 but by § 33-23-1."); Insana, 110 R.I. at 477, 294 A.2d at 182 ("Under § 33-23-8 any interested party who has not previously appeared in a cause of this sort may upon motion be allowed by the Superior Court to enter an appearance."). Although there is very little case law on intervening in a probate case, the cases on point distinguish that a person who was a party previously to the action cannot be added as an interested party. As there is no dispute that Victor and Madonna were previously parties to the proceedings, the Court cannot allow them back into the proceedings by a motion to intervene.
However, this Court has the power to act in equity when it believes an injustice will occur. Pursuant to Super. R. Civ. P. 24, the Court may grant a motion to intervene in two circumstances:
"(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action:
"(1) When a statute of this state confers an unconditional right to intervene; or
"(2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
"(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action:
"(1) When a statute of this state confers a conditional right to intervene; or
"(2) When an applicant's claim or defense and the main action have a question of law or fact in common.
When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency, upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Super. R. Civ. P. 24(a)-(b).
Although case law on motions to intervene is sparse, our Supreme Court has looked to federal law at times for guidance. Hines Rd., LLC v. Hall, 113 A.3d 924, 928 (R.I. 2015) ("we have described Rhode Island precedent concerning motions for intervention as 'sparse . . .'"); Tonetti Enters., LLC v. Mendon Rd. Leasing Corp., 943 A.2d 1063, 1073 (R.I. 2008). "Rule 24(a)(2) provides for intervention as of right when a party establishes that his or her interests are not adequately represented by the current litigants." Town of Coventry v. Baird Props., LLC., 13 A.3d 614, 619 (R.I. 2011). Rule 24(a)(2) has been used as a vehicle for parties who have "a readily identifiable interest in land, funds or some other form of property." Credit Union Cent. Falls v. Groff, 871 A.2d 364, 367 (R.I. 2005) (citing 7C Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1908 at 272-75 (1986) (emphasis in original)). Moreover, "[i]ntervention will be allowed if an applicant establishes 'some tangible basis to support a claim of purported inadequacy' of representation by the current contestants." Id. at 620 (quoting Credit Union Central Falls, 871 A.2d at 368). Additionally, "[a]n intervenor's interest must bear a sufficiently close relationship to the dispute between the original litigants and the interest must be direct, not contingent." Hines Rd., LLC, 113 A.3d at 930 (Tonetti Enters., LLC, 943 A.2d at 1073 (emphasis in original)).
In the present case, Victor and Madonna are no longer part of the appeal involving their father's estate. As one-third beneficiaries of the estate, Victor and Madonna clearly have a stake in the outcome of these proceedings, as they will be entitled to one-third each of any potential judgment. See Hines Rd., LLC, 113 A.3d at 930. Moreover, the Court finds that Ambrose is not adequately representing Victor and Madonna's interests. See Town of Coventry, 13 A.3d at 619. Ambrose has fired his most recent attorney and continues to try and navigate these difficult legal proceedings as a pro se litigant. Ambrose himself has recognized his inability to represent himself adequately but he has chosen to proceed pro se rather than have the lawyer he engaged represent him. He has failed after a number of attempts to engage new counsel. By Ambrose appearing pro se, the Court finds that his siblings, Victor and Madonna, are being harmed by his decision as he cannot adequately represent their interests. As such, this Court will allow Victor and Madonna to intervene.
IV
Conclusion
For the above stated reasons, Defendants' motion for summary judgment is denied because the claims are not barred by res judicata. Victor and Madonna's motion to intervene is conditionally granted because Ambrose does not adequately represent their interests at this time.
Counsel shall submit the appropriate order for entry.