Opinion
C. A. PC-2011-2275 PP-2019-09966
03-05-2020
GEORGE H. ADAMS, III, Personally and GEORGE H. ADAMS, III, ADMINISTRATOR OF THE ESTATE OF GEORGE H. ADAMS, IV v. HALEY McKEE, Alias, RICHARD P. McKEE, Alias, BENEFIT REALTY, INC., CHRISTIAAN OF RHODE ISLAND, INC., STEPHEN R. MILLER HOUSE CONDOMINIUM ASSOCIATION, ATWELLS REALTY CORP. d/b/a CLUB DESIRE, CITY OF PROVIDENCE, by and through its Treasurer, JAMES L. LOMBARDI, III, STATE OF RHODE ISLAND, by and through its Department of Transportation and its Defendant Director, MICHAEL P. LEWIS, JOHN DOE CORPORATION, Alias and JOHN DOE, Alias
For Plaintiff: George P. Hovarth, Esq.; Amata A. Deluca, Esq.; Michael F. Horan, Esq. For Defendant: Gerard M. Decelles, Esq.; William F. White, Esq.; Mark P. Dolan, Esq.; Michael A. Calise, Esq.; Keith Hoffmann, Esq.; Dennis S. Baluch, Esq.; Thomas C. Plunkett, Esq.; Kate C. Brody, Esq.; Neil F.X. Kelly, Esq.; Rajaram Suryanarayan, Esq.
For Plaintiff: George P. Hovarth, Esq.; Amata A. Deluca, Esq.; Michael F. Horan, Esq.
For Defendant: Gerard M. Decelles, Esq.; William F. White, Esq.; Mark P. Dolan, Esq.; Michael A. Calise, Esq.; Keith Hoffmann, Esq.; Dennis S. Baluch, Esq.; Thomas C. Plunkett, Esq.; Kate C. Brody, Esq.; Neil F.X. Kelly, Esq.; Rajaram Suryanarayan, Esq.
DECISION
GIBNEY, P.J.
Before this Court is Plaintiff George H. Adams III's (Plaintiff) Motion to Approve and Enforce Settlement and Motion to Consolidate, Defendant Melinda Adams' (Defendant)Motion to Intervene and Motion to Dismiss, and Defendant Atwells Realty Corp. d/b/a/ Club Desire's Motion to Seal Hearing Transcript. The Court exercises jurisdiction pursuant to G.L. 1956 § 33-23-1(b).
Melinda Adams is not a party to the wrongful death action but is a defendant in the probate appeal.
I
Facts and Travel
On February 17, 2011, the Plaintiff's son George H. Adams IV (the Decedent) was struck by a car while walking along the side of a road and died intestate shortly thereafter. On April 7, 2011, the Central Falls Probate Court (the Probate Court) appointed Plaintiff as Administrator of the Decedent's estate (the Estate). Defendant previously petitioned the Probate Court to appoint her as Administratrix of the Estate. Her petition was denied. (Probate Hearing Transcript (Tr.) at 20:1-15, May 2, 2019.) On April 22, 2011, Plaintiff brought claims for wrongful death and loss of consortium against ten defendants (the Wrongful Death Defendants).
Plaintiff eventually reached a settlement agreement with all Wrongful Death Defendants. On January 16, 2019, Plaintiff sent a letter to the Wrongful Death Defendants with a proposed apportionment of the settlement. (Def.'s Probate Misc. Pet. Ex. A, Re: Estate of George H. Adams IV, No. 8541, Feb. 12, 2019.) Plaintiff suggested an apportionment of $100,000 to the Estate and the remainder to Plaintiff for his loss of consortium. Id. On February 12, 2019, Defendant filed a Miscellaneous Petition with the Probate Court alleging that Plaintiff's proposed apportionment "violated his fiduciary duty as Administrator of his late son's estate" because it allocated much of the settlement to his loss of consortium claim. (Def.'s Probate Misc. Pet. at 2.)
On April 18, 2019, Plaintiff filed a Petition for Approval of Settlement of Action (Petition for Approval) with the Probate Court seeking its approval of the overall settlement and proposed apportionment. (Pl.'s Pet. for Approval, Re: Estate of George H. Adams, IV, No. 8541 at 1, Apr. 18, 2019.) The Probate Court held a hearing on May 2, 2019 (the Hearing). At the Hearing, Defendant confirmed that she was only challenging the proposed allocation to the Estate and had no objection to the overall settlement. (Tr. at 5:10-14.) Defendant argued that Plaintiff had a responsibility as a court-appointed fiduciary to ensure that any settlement allocation to the Estate was fair and equitable, and that the proposed apportionment was not fair and equitable. Id. at 6:20-7:16. In response, Plaintiff contended that the wrongful death statute limited damages recoverable by the Estate to medical expenses and diminution of earning power. Id. at 8:4-11. Both Plaintiff and Defendant submitted expert reports as to the Decedent's loss of future earnings. Id. at 28:20-29:19.
Thereafter, on May 2, 2019, the Probate Court denied Plaintiff's Petition for Approval and stated that Plaintiff could "refile petition to substantiate the allocation of settlement proceeds with further evidence and documentation." (Probate Court Order at 1, May 2, 2019.) Plaintiff filed another Petition for Approval on July 29, 2019, which the Probate Court again denied. (Probate Court Order at 1, Sept. 4, 2019.) Plaintiff appealed this denial to the Superior Court on October 2, 2019, and now brings a Motion to Approve and Enforce Settlement, along with a Motion to Consolidate the wrongful death and probate appeal actions. Defendant filed a Motion to Dismiss the probate appeal, arguing that Plaintiff failed to comply with certain jurisdictional statutory requirements, along with a Motion to Intervene in the wrongful death action. Defendant Atwells Realty Corp. d/b/a Club Desire (Atwells) also brings a Motion to Seal all pleadings and Court transcripts regarding the proposed settlement.
The Superior Court granted Defendant's Motion to Intervene in the probate appeal action on November 6, 2019.
II
Standard of Review
Section 33-23-1(b) governs Superior Court review of probate orders and provides in part:
"An appeal under this chapter is not an appeal on error but is to be heard de novo in the superior court. The record of proceedings, including the certified documents and the transcript (if any) from the probate proceedings, may be introduced in the superior court without further authentication. The findings of fact and/or decisions of the probate court may be given as much weight and deference as the superior court deems appropriate, however, the superior court shall not be bound by any such findings or decisions." Section 33-23-1(b).
"The sole function of a motion to dismiss is to test the sufficiency of the complaint." Palazzo v. Alves, 944 A.2d 144, 149 (R.I. 2008) (quotations omitted). This Court will "'look no further than the complaint, assume that all allegations in the complaint are true, and resolve any doubts in a plaintiff's favor.'" Watson v. Fox, 44 A.3d 130, 134-35 (R.I. 2012) (quoting McKenna v. Williams, 874 A.2d 217, 225 (R.I. 2005)). This Court will grant the motion where "it is clear beyond a reasonable doubt that the plaintiff would not be entitled to relief from the defendant under any set of facts that could be proven in support of the plaintiff's claim." Ellis v. Rhode Island Public Transit Authority, 586 A.2d 1055, 1057 (R.I. 1991).
III
Analysis
A
Motion to Approve and Enforce Settlement
Defendant has no objection to the overall settlement but challenges the Plaintiff's proposed allocation to the Estate, contending that it is not fair and equitable to apportion $100,000 to the Estate and the remainder of the settlement to Plaintiff for his loss of consortium. (Tr. at 5:3-14, 7:6-11.) None of the Wrongful Death Defendants object to the settlement or its terms, and all have signed releases to that effect. Id. at 3:17-24. In petitioning this Court to approve the settlement, Plaintiff argues that Defendant has no personal interest in the settlement and thus has no right to challenge the proposed allocation.
Section 33-18-16 permits the Probate Court to "authorize . . . administrators . . . to adjust by compromise, or otherwise settle or dispose of, any claim in favor of or against . . ." As Administrator of the Estate, Plaintiff was vested with "all the power and authority prescribed by law to said office" and thus had authority to settle the wrongful death action. (Pl.'s Mot. to Approve and Enforce Settlement, Ex. C, Certificate of Appointment, Apr. 7, 2011.)
It is well settled that "[a] trial court has the power to summarily enforce a settlement agreement entered into by the litigants while the litigation is pending before it." U.S. v. Hardage, 982 F.2d 1491, 1496 (10th Cir. 1993); see also Dankese v. Defense Logistics Agency, 693 F.2d 13, 16 (1st Cir. 1982) ("[A] trial court retains an inherent power to supervise and enforce settlement agreements entered into by parties to an action pending before the court."). This Court will "treat settlement agreements as [it] would any other contract, binding the parties to the terms of their bargain and permitting signatories of settlement agreements to seek court assistance in enforcing those agreements . . ." Furtado v. Goncalves, 63 A.3d 533, 538 (R.I. 2013).
G.L. 1956 § 10-7-10 limits the estate's damages in a wrongful death action to medical expenses and diminution of earning power until time of death under § 10-7-5 and pain and suffering under § 10-7-7. At the Hearing, Plaintiff stated that there was no claim for the Decedent's medical bills and the apportionment was based on "one day's lost earnings" between the accident and the time of death. (Tr. at 9:21-10:16.) Therefore, recovery to the Estate is necessarily limited. Defendant claims that she qualifies as a beneficiary under § 10-7-2 and thus is entitled to a beneficial share of the settlement, while Plaintiff claims that shortcomings in child support preclude her from receiving such a share. Id. at 10:12-16, 14:9-16. The Court will resolve this issue at a later date.
Section 10-7-10 provides that "[a]ll damages recoverable under §§ 10-7-1-10-7-4 and under 10-7-7.1 shall be recoverable by and awarded to those beneficiaries as specified in § 10-7-2 and shall not be deemed or considered damages to the estate of the decedent . . ."
Section 10-7-2 states that "no person who is adjudged to be in willful contempt of being in excess of six (6) months in arrears of an order to pay child support for the deceased individual shall be allowed recovery pursuant to this chapter . . ."
Because the only objection to the settlement is Defendant's challenge to the Estate allocation, the Court finds no reason to keep the Wrongful Death Defendants immersed in litigation in which they no longer have any interest. Therefore, this Court grants Plaintiff's Motion to Approve and Enforce Settlement and orders that the settlement funds be held in escrow pending resolution of the allocation issue.
B
Motion to Dismiss
Defendant argues that Plaintiff's probate appeal should be dismissed because he did not file a certified copy of the Probate Court records with this Court pursuant to § 33-23-1(a)(2). However, in making this argument, Defendant relies on an outdated version of the statute. In 2016, the General Assembly amended § 33-23-1 so that filing a certified copy of the probate record is no longer a jurisdictional requirement. (P.L. 2016, ch. 485, § 1, eff. July 15, 2016.) While Defendant cites case law where our Supreme Court dismissed probate appeals for failure to file a certified copy of the record, these decisions were rendered well before the 2016 amendment.
See Kelley v. Jepson, 811 A.2d 119, 122 (R.I. 2002); Estate of Hart v. LeBlanc, 853 A.2d 1217, 1220 (R.I. 2004).
Here, Plaintiff complied with all jurisdictional requirements of § 33-23-1(a). Plaintiff filed his claim of appeal and request for a certified copy of the claim with the Probate Court on September 20, 2019. (Probate Court Claim of Appeal at 1, Sept. 20, 2019.) On October 2, 2019, Plaintiff filed his reasons for appeal and a certified copy with his claim with the Superior Court, along with an affidavit in proof of docketing the probate appeal. (Def.'s Mot. to Dismiss Ex. D at 1.) Thus, there exists no jurisdictional, procedural ground for dismissing Plaintiff's appeal.
"(a) Any person aggrieved by an order or decree of a probate court (hereinafter 'appellant'), may, unless provisions be made to the contrary, appeal to the superior court for the county in which the probate court is established by taking the following procedure:
"(1) Within twenty (20) days after execution of the order or decree by the probate judge, the appellant shall file, in the office of the clerk of the probate court, a claim of appeal to the superior court and a request for a certified copy of the claim and shall pay the clerk his or her fees therefor.
"(2) Within thirty (30) days after the entry of the order or decree, the appellant shall file, in the superior court, a certified copy of the claim and the reasons of appeal specifically stated, to which reasons the appellant shall be restricted, unless, for cause shown, and with or without terms, the superior court shall allow amendments and additions thereto.
"(3) The appellant shall file with the probate clerk an affidavit in proof of the filing and docketing of the probate appeal pursuant to the time deadlines set forth in subdivision (a)(2)." Section 33-23-1(a)(1)-(3). These procedural requirements are jurisdictional pursuant to § 33-23-1(c).
The Court notes that while Plaintiff provided a written transcript of the May 2, 2019 hearing before the Probate Court, there are no written transcripts of two subsequent hearings. Plaintiff represented before this Court that a CD with recordings of these hearings was submitted along with his appeal. (Superior Court Hearing Transcript at 20:5-11, Dec. 12, 2019.) While these records may be essential to the Court's determination of the allocation issue, they are not necessary to rule on the present motions. Therefore, Defendant's Motion to Dismiss is denied.
C
Motion to Consolidate
"It is well settled that causes of action may be consolidated for judicial economy when the actions involve common law and facts . . ." Malinou v. Neri, 197 A.3d 1282, 1286 (R.I. 2018); Super. R. Civ. P. 42(a). Consolidation is also permitted "to avoid unnecessary delay and expense in the administration of justice." Giguere v. Yellow Cab Co., 59 R.I. 248, 195 A. 214, 216 (1937). The only remaining issue presented before the Court is whether the proposed allocation of settlement funds to the Estate is fair and equitable. All Wrongful Death Defendants have reached settlement with Plaintiff and signed general releases to that effect. Therefore, consolidating these actions favors expedient resolution of the case, and Plaintiff's request for consolidation is granted.
D
Motion to Intervene
The Court now turns to Defendant's Motion to Intervene in the wrongful death action. Defendant seeks to intervene pursuant to § 33-23-8 and Super. R. Civ. P. 24(a)-(b) (Rule 24). Both Plaintiff and Defendant Atwells have objected to the motion. The Superior Court previously granted Defendant's intervention in the probate appeal action.
Rule 24(b) permits a party to intervene in an action, upon timely application, "[w]hen an applicant's claim or defense and the main action have a question of law or fact in common." Super. R. Civ. P. 24(b). The timeliness of a motion to intervene "is a matter committed to the sound discretion of the trial justice." Marteg Corp. v. Zoning Board of Review of City of Warwick, 425 A.2d 1240, 1242 (R.I. 1981).
Here, Defendant challenges the proposed settlement allocation to the Estate, which is the only remaining issue before the Court. The motion was filed shortly after Plaintiff brought his Motion to Approve and Enforce Settlement before this Court; Defendant was thus timely in seeking to intervene to challenge the settlement allocation. While Plaintiff objects to intervention on the grounds that Defendant did not provide a pleading with her motion as is required under Rule 24(c), he has "failed to demonstrate how [he was] prejudiced by any alleged procedural shortcomings" in Defendant's motion. Town of Coventry v. Hickory Ridge Campground, Inc., 111 R.I. 716, 724, 306 A.2d 824, 828 (1973) (finding failure to comply with Rule 24(c) did not prevent court from granting intervention). Therefore, this Court grants Defendant's Motion to Intervene pursuant to Super. R. Civ. P. 24(b).
E
Motion to Seal
Defendant Atwells asks this Court to seal all pleadings and transcripts pertaining to the settlement based on the confidentiality provision in the underlying settlement agreement. Our Supreme Court has made clear that "[i]t is the policy of this state to encourage the settlement of controversies in lieu of litigation." Skaling v. Aetna Insurance Co., 799 A.2d 997, 1012 (R.I. 2002). However, this policy must be weighed against the common-law right of access to judicial records. See In re Access to Certain Records of Rhode Island Advisory Committee on Code of Judicial Conduct, 637 A.2d 1063, 1066 (R.I. 1994) (finding that access to court records is discretionary with the court and should be considered "in light of the relevant facts and circumstances of the particular case") (quotation omitted).
The Court has a copy of the settlement agreement before it and finds that a protective order effectuates the state policy of encouraging settlement and ensuring that confidentiality provisions in settlement agreements are honored. The Court therefore grants Defendant Atwell's motion and seals all pleadings and transcripts in this matter.
IV Conclusion
For the foregoing reasons, the Court grants Plaintiff's Motion to Approve and Enforce Settlement and Motion to Consolidate; grants Defendant's Motion to Intervene; denies Defendant's Motion to Dismiss; and grants Defendant Atwell's Motion to Seal. The Court will schedule a conference with counsel and assign a date for hearing.