December 20, 2018


                                                                  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.
                                                                     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.

               Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

         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 dismissing his probate court appeals for his failure to comply with several court orders.

This case came before the Supreme Court pursuant to an order directing the parties to appear and

show cause why the issues 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 not 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 Centre 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,


                                                -1-
in 2014, asked him to represent them in the Cranston Probate Court’s guardianship proceedings

that had been initiated by their niece and nephew, the defendants Barbara Neri and Donald

D’Amore. The defendants 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 truculent and tortuous pursuit of his contention that the D’Amore sisters

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 appointed 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, asserting that the D’Amore sisters had

asked him to represent them; however, he was unable to produce any documentation—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 control 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 by the sisters and Diane LaFerriere, an associate of Malinou’s. The latest account

activity had been to close the account entirely.     On May 10, 2014, the final balance of

$133,107.33 was transferred to Malinou without providing any notice to defendants. Counsel

also forwarded the petition to remove to the Supreme Court’s Disciplinary Counsel and to the

Rhode Island State Police Financial Crimes Unit. Around that same time, Malinou filed a


                                              -2-
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.

         The probate court considered the petition to remove Malinou 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 into his client account, the probate 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 look 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 Court and proposed that he be named

executor pursuant to the terms of her will. The defendants filed motions to dismiss the petition

for lack of jurisdiction, to transfer venue to the Cranston Probate Court, and to remove Malinou

as proposed executor of the will. The Providence Probate Court dismissed 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 decrees as well as from the orders 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


                                               -3-
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 received at least $133,107.33 of the

D’Amore sisters’ money. The Superior Court justice subsequently consolidated all five of

Malinou’s probate court appeals and held several hearings over the next two years related to the

various issues raised in and by those appeals.2 The Superior Court justice ultimately dismissed

the appeals pursuant to Rule 41(b)(2) of the Superior Court Rules of Civil Procedure due to

Malinou’s repeated refusals to comply with the orders of the Superior Court. The following

summary of the proceedings in Superior Court therefore focuses on those orders—all of which

relate to the money Malinou received and retained from the 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 into the Registry of the Superior

Court. While Malinou twice assured 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

claimed that he no longer had any additional funds. The Superior Court ordered Malinou 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 this 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 appeals.
2
  Two of the appeals were from the Cranston Probate Court’s orders disqualifying Malinou from
representing each D’Amore sister and granting defendants’ petitions for guardianship over
Yolanda and Ida; one of the appeals was from the Cranston Probate Court’s order granting
defendants’ 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
defendants’ motions to dismiss Malinou’s petitions to probate Yolanda’s and Ida’s wills for lack
of jurisdiction and improper venue.
                                              -4-
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 into the registry of the court,

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 Status hearings held after the

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 spring of 2016, defendants filed a motion to dismiss the appeals pursuant to Rule

41(b)(2) for Malinou’s repeated failure to comply with the court’s orders. The 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 into the
registry of the court—No. PM-2016-3454. No significant activity has 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 registry of the court. 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 adopted the Disciplinary Board’s
recommendation and ordered a minimum ninety-day suspension from the practice of law, with
                                               -5-
                                                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. 41(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 were 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 disclose these funds either to defendants or to 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 Cranston 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 challenge the contempt order itself, only the dismissal of his appeals.



reinstatement only after Malinou deposited the $33,107.33 balance into the registry of the court.
Id. at 776.
6
  Malinou also raises a question about whether he has an attorney lien on the $100,000 deposited
into the registry of the court, 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)).
                                               -6-
       Prior to considering 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 causes of action may be consolidated for judicial economy when the

actions involve common law and facts, but that the consolidated matter does not merge into a

single cause of action. Instead, the 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 Resources Board 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, 850 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 notice of

appeal from No. PP-2014-4885. This particular cause of action represented Malinou’s appeal

from a decree of the Providence Probate Court in case No. 2014-337, denying 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 with an involuntary dismissal pursuant to

Rule 41(b)(2); therefore, the only issue properly before us for review is whether the Superior


                                                -7-
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 court 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 plaintiff 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 improperly in Malinou’s

possession. The Superior Court justice provided several opportunities for Malinou to deposit the

$33,107.33 balance into the registry of the court, 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, most 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 time 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.).
                                               -8-
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 balance, the

Superior Court justice’s decision reflects that, when Malinou was first ordered to deposit the

money into the registry of the court, he represented to the court 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 registry of

the court, even after the Superior Court had held 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 the 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 Superior 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.




                                                 -9-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

                                     Martin Malinou v. Barbara Neri, Individually and as
Title of Case
                                     Permanent Co-Guardian of Ida D’Amore, et al.
                                     No. 2017-5-Appeal.
Case Number
                                     (PP 14-4885)
Date Opinion Filed                   December 20, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Chief Justice Paul A. Suttell

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Brian Van Couyghen
                                     For Plaintiff:

                                     Martin Malinou, Pro Se
Attorney(s) on Appeal
                                     For Defendants:

                                     Frank S. Lombardi, Esq.




SU-CMS-02A (revised June 2016)
