Beirne v. Barone, 86-422-A

Decision Date27 July 1987
Docket NumberNo. 86-422-A,86-422-A
Citation529 A.2d 154
PartiesCharles F. BEIRNE, Conservator of the Estate of Sophia H. Bak v. Genevieve BARONE et al. ppeal.
CourtRhode Island Supreme Court
OPINION

FAY, Chief Justice.

This is an action for the recovery of assets allegedly belonging to an estate, brought by the present conservator of the estate against its prior conservator and her surety. A Superior Court justice dismissed the action for lack of jurisdiction over the subject matter and as barred by the doctrine of res judicata. The plaintiff now appeals from that dismissal. We sustain that appeal.

On November 15, 1976, Sophia Bak (Bak), having become incapacitated by reason of advanced age, petitioned the Probate Court of the City of Providence to appoint defendant, Genevieve Barone (Barone), conservator of her property. On November 30, 1976, the petition was granted. Bond was set at $27,000; defendant, Aetna Casualty and Surety Company (Aetna), was made surety of the bond.

On January 5, 1978, Barone filed a first and final accounting of the estate. On January 31, 1978, Bak petitioned the court to release Barone as conservator, alleging that she had become competent to manage her own affairs. On October 4, 1983, the court issued decrees allowing the accounting and discharging Barone as conservator.

On July 12, 1984, again for reasons of advanced age, Bak petitioned the Probate Court to appoint plaintiff, Charles Beirne (Beirne), conservator of her property, which it did on September 11, 1984. On September 17, 1984, Beirne filed a motion in Probate Court seeking to vacate the judgment allowing Barone's first and final accounting, alleging that (1) it made no account of Bak's income and expenses between January 5, 1978, when it was filed, and October 4, 1983, when it was allowed, and (2) it showed approximately $27,000 worth of stocks and cash turned over to Bak on January 4, 1978, the receipt of which Bak denied. At the same time Beirne filed a motion to transfer records and property, alleging that Barone was still in possession of Bak's assets, and a motion to summon and receive evidence, requesting that the court require Barone to appear in order to be examined regarding the estate.

The motions were heard on October 2, 1984. Barone testified that she never returned all of the books or money to Bak as she claimed to have done on the first and final accounting. She stated that after she was discharged as conservator and until she was notified of Beirne's appointment she continued to receive money and pay bills on Bak's behalf using a checking account in the name of Bak, c/o Barone. She further stated that sometime in 1981 Bak made her a gift of approximately $36,000, which she put in a money-market account in her name with Bak's consent. The funds from this account, which included the proceeds from the sale of the allegedly missing stocks, were spent, according to Barone, both on her needs and Bak's. At the time of the hearing only three hundred dollars remained in this account.

The Probate Court judge continued the matter several times in order to permit Barone to collect the records she claimed to have pertinent to the money-market account in explanation of the missing assets. On May 6, 1986, noting that no such accounting had been presented by November 27, 1984, the last date to which the matter had been continued, and finding that he had no jurisdiction to determine the validity of the alleged gift, the Probate Court judge ordered the motions held in abeyance until a court of "competent jurisdiction" decided the issue.

On December 10, 1984, Beirne commenced this action in Superior Court against Barone and Aetna as surety. The complaint detailed the Probate Court history in the case and denied that the assets were ever given to Barone as a gift. Beirne prayed for a temporary restraining order and preliminary injunction restraining Barone from transferring title or possession of any assets, a finding that Barone had breached her fiduciary duty, recovery of the allegedly misappropriated assets, and damages of $75,000. 1

The matter came to a hearing on August 12, 1986. 2 After Beirne introduced the Probate Court record, defendants moved to dismiss the case on the basis of lack of subject-matter jurisdiction and res judicata. The trial justice granted the motion.

Beirne contends on appeal, as he did before the trial justice, that the Superior Court had jurisdiction to hear this case under G.L. 1956 (1984 Reenactment) § 33-18-6. 3 We have previously determined that this section provides a successor administrator (hence by its terms a successor executor or successor guardian) with three remedies against a predecessor "for the recovery of 'goods and effects, books of account, securities, documents, or papers whatsoever belonging to the estate,' or of damages for their nondelivery[,]" those remedies being "(1) a direct suit against the predecessor or his heirs, executors or administrators, (2) a petition in the probate court for an order of delivery enforceable by contempt process, [and] (3) a suit on the predecessor's bond against all parties thereon." Probate Court of East Providence v. McCormick, 56 R.I. 308, 327, 185 A. 592, 600 (1936) (construing an earlier version of § 33-18-6 almost identical to the current version in its pertinent parts). The provision does not, however, allow for a suit by a successor fiduciary for damages for waste or mismanagement of the estate. Id.

Barone contends, and the trial justice agreed, that § 33-18-6 does not apply in this case since Beirne is not a successor conservator but rather a new conservator, given the eleven-month hiatus between the time of Barone's release and Beirne's appointment, during which time Bak was officially responsible for the management of her own estate. 4 We disagree.

"Successor" is defined by Black's Law Dictionary 1283 (5th ed. 1979) as "one who takes the place that another has left, and sustains the like part or character * * * [o]ne who has been appointed or elected to hold an office after the term of the present incumbent." Webster's Third New International Dictionary 2282 (1971) defines "to succeed" as "to come next after or replace another in an office, position, or role in possession of an estate: fill a vacancy in an inherited, elective, or appointive position," and "successor," as "one that follows; esp.: a person who * * * is elected or appointed to an office * * * or other position vacated by another."

Although these definitions do not necessarily require immediate replacement in a role or office, they do require that a successor follow "next" after the previous position-holder. That § 33-18-6, permitting suits by successors against predecessors for the recovery of property, follows directly upon other provisions of title 33, chapter 18, dealing with the removal or resignation of a fiduciary and the appointment by the court of a replacement, would, however, appear to indicate that the succession to which § 33-18-6 refers would be more immediate than not.

Barone in essence contends that Bak, and not Beirne, followed her "next" as conservator by assuming responsibility for the management of her own property during the eleven-month period in question. However, Barone herself admitted under oath in Probate Court that she remained in charge of Bak's books after she was discharged and continued to manage her financial affairs until Beirne's appointment, indicating that Bak's ability to do so for herself--and, perhaps, to recognize that the allegedly returned property was not in fact returned--was at best limited. Furthermore, the space of time between the official end of Barone's conservatorship and the beginning of Beirne's was short.

In such circumstances, to deny this statutory remedy to Beirne against Barone and Aetna for the recovery of property originally accounted for as belonging to the estate and admittedly not returned would defeat the obvious intent of the Legislature in enacting this provision to ensure that a ward's estate is turned over intact by a retiring conservator. We therefore find that the trial justice erred in determining that § 33-18-6 did not provide the Superior Court with jurisdiction over this case.

The trial justice further found that the action in Superior Court was barred under the principle of res judicata by the final accounting allowed by the Probate Court, which indicated that the assets in question had been returned, and by the discharge of Barone as conservator. The doctrine of res judicata applies as an absolute bar to a second cause of action where there exists identity of parties,...

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24 cases
  • Glover v. Torrence
    • United States
    • Indiana Appellate Court
    • February 7, 2000
    ...confidential relationship, even an intrinsic fraud will constitute a sufficient basis to warrant relief from judgment. Beirne v. Barone, 529 A.2d 154, 157-58 (R.I.1987) (noting that the existence of a fiduciary relationship obliterates the distinction between extrinsic and intrinsic fraud);......
  • Burt v. Rhode Island Hospital Trust National Bank, C.A. No. PC/02-2243 (R.I. Super. 7/26/2006), C.A. No. PC/02-2243
    • United States
    • Rhode Island Superior Court
    • July 26, 2006
    ...the moving party must show "identity of parties, identity of issues, and finality of judgment in an earlier action." Beirne v. Barone, 529 A.2d 154, 157 (R.I. 1987) (citing Hebert v. Ventetuolo, 480 A.2d 403, 405 (R.I. 1984)). In determining the scope of the issues to be precluded in the se......
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    ... ... action. Plunkett , 869 A.2d at 1188 (R.I. 2004) ... (citing Beirne v. Barone , 529 A.2d 154, 157 (R.I ... 1987)). The term "res judicata" is commonly used to ... ...
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