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. December 20, 2018- 1

- Supreme Court
No. 2017

- 5

- Appeal

. ( PP 14

- 4885 )
Martin Malinou :

v. :
Barbara Neri , Individually and as Permanent Co

- Guardian of I da D’Amore, et al. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
O P I N I O N 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 dismiss ing his probate court appeals for his failure to comply with several court orders. This case came before the Supreme Cour t pursuant to an order directing the parties to appear and show cause why the issue s 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 no t 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 Cent re 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 ,- 2

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in 2014, asked him to represent them in the Cranston P robate C ourt’s guardianship proceedings that had been initiated by their niece and nephew, the defendants Barbara Neri and Donald
D’Amore . The defend ants 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 t ruculent and tortuous pursuit of his contention that the D’Amor e sister s 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 ap pointed 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 , asser ting that the D’Amore sisters had
asked him to represent them ; however, he was unable to produce any document ation

— 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 contr ol 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 b y the sisters and Diane LaFerriere, an associate of Malinou’ s
. T he latest account activity had been to close the account entirely . O n May 10, 2014 , th e final balance of $133, 107.33 was transferred to Malinou without providing any notice to defendants

. Counsel
also forwarded th e petition to remove to the Supreme Court’s Disciplinary Counsel and to the
Rhode Island State Police Financial Crimes Unit

. Around th at same time, Malinou filed a- 3

-

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.
T he probate court consider ed th e petition to remove Mal inou 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 in to his client account , t he prob ate 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 loo k 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 C ourt and proposed that he be named

executor pursuant to the terms of her will

. The defendants filed motion s to dismiss the petition for lack of jurisdiction, to transfer venue to the Cranston Probate Court, and to remove Malinou as proposed executor of th e will. The Providence Probate Court dismiss ed 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 decree s as well as from the orde rs 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- 4

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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 receiv ed at least $133,107.33 of the
D ’Amore sisters’ money. The Superior Court justice subsequently consolidated all five of Malinou’s proba te court appeals and held several hearings over the next two years related to the
various issues raised in and by th o se appeals. 2 T he Superior Court justice ultimately dismissed
the appeals pursuant to Rule 41(b)(2) of the Superior Court Rules of Civil Pr ocedure due to Malinou’s repeated refusal s to comply with the orders of the Superior Court . The following summary of the proceedings in Superior Court therefore focuses on th o se orders

— all of which
relate to the money Malinou received and retained from th e 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 in to the Registry of the Superior
Court

. While Malinou twice assur ed 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
claim ed that he no longer had any additional funds . The Superior Court ordered Malino u 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 th is 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 a ppeals. 2 Two of the appeals were from the Cranston P robate C ourt’s orders disqualifying Malinou from representing each D’Amore sister and granting defendants’ petitions for guardianship over Yolanda and Ida ; one of the appeals w as from the Cranston Probat e Court’s order granting defendant s’ 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 defendant s ’ motions to dismiss Malinou’s petitions to probate Yolanda ’s and Ida’s wills for lack of jurisdiction and improper venue.- 5

-

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 in to the r egistry of the c ourt , 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 S tatus hearings held after th e 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 s pring of 2016, defendants filed a motion to dismiss the appeals p ursuant to Rule 41(b)(2) for Malinou’s repeated failure to comply with the court’s orders. T he 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 in to the r egistry of the c ourt

— No. PM

- 2016

- 3454. No significant activity ha s 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 r egistry of the c ourt. 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 ado pted the Disciplinary Board’s recommendation and ordered a minimum ninety

- day suspension from the practice of law, with- 6

- 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. 4 1(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 w ere 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 disclos e these funds either to defendants or t o 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 Cran ston 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 chall enge the contempt order itself, only the dismissal of his appeals.

reinstatement only after Malinou deposited the $33,107.33 balance into the r egistry of the c ourt. Id. at 776. 6 Malinou also raises a qu estion about whether he has an attorney lien on the $100,000 deposited in to the r egistry of the c ourt, 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) ).- 7

-

Prior to consider ing 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 c auses of action may be consolidated for judicial economy when the
actions involve common law and facts , but that the consolidated matter do es not merge into a single cause of action. Instead, t he 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 Res ources B oar d 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 , 85 0 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 no tice of appeal from No. P P

- 2014

- 4885

. This particular cause of action represented Malinou’ s appeal
from a decree of the Providence Probate Court in case N o. 2014

- 337, den ying 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 w ith an involuntary dismissal pursuant to Rule 41(b)(2) ; therefore , the only issue properly before us for review is whether the Superior- 8

-

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 co urt 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 plaint iff 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 improper ly in Malinou’s possession. The Superior Court justice provided several opportunities for Malinou to deposit the $33,107.33 balance into the r egistry of the c ourt, 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, m ost 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 tim e 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.).- 9

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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 ba lance, the Superior Court justice’s decision reflects that , when Malinou was first ordered to deposit the money into the r egistry of the c ourt , he represented to the c ourt 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 r egistry of
the c ourt, even aft er the Superior Court h ad h eld 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 t he 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 Super ior 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.STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT

– CLERK’S OFFICE
OPINION COVER SHEET

Title of Case Martin Malinou v. Barbara Neri, Individually and as Permanent Co

- Guardian of Ida D’Amore, et al

. Case Number No. 201 7

- 5

- Appeal. ( PP 14

- 4885 ) Date Opinion Filed December 20 , 2018
Justices Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia , JJ. Written By Chief Justice Paul A. Suttell Source of Appeal Providence County Superior Cour t Judicial Officer From Lower Court Associate Justice Brian Van Couyghen

Attorney(s) on Appeal For Plaintiff : Martin Malinou, Pro Se
For Defendant s : Frank S. Lombardi, Esq.

SU

- CMS

- 02A (revised June 2016)