Fiorenzano v. Lima

• Decision Date: 06 November 2009
• Docket Number: No. 2008-234-Appeal.,2008-234-Appeal.
• Citation: 982 A.2d 585
• Parties: Frank FIORENZANO v. Kenneth LIMA.
• Court: Rhode Island Supreme Court

982 A.2d 585

Frank FIORENZANO v. Kenneth LIMA.

No. 2008-234-Appeal.

Supreme Court of Rhode Island.

November 6, 2009.

Frank Fiorenzano, Plaintiff Pro Se.

Joseph Palumbo, Esq., Middletown, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, JJ., and WILLIAMS, C.J. (ret.).

OPINION

Justice ROBINSON for the Court.

The plaintiff, Frank Fiorenzano, appeals pro se from the Superior Court's grant of summary judgment in favor of the defendant, Kenneth Lima, with respect to each of the counts set forth in the plaintiff's complaint. This case came before the Supreme Court for oral argument pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be summarily decided. After considering the written and oral submissions of the parties, we are of the opinion that the appeal may be resolved without further briefing or argument. For the reasons hereinafter set forth, we affirm the judgment of the Superior Court.

Facts and Travel

This case arose in the wake of an acrimonious probate-related dispute involving Kenneth Lima and Charlene Lima, the latter being plaintiff's wife and Kenneth's sister.¹ In his complaint, Mr. Fiorenzano alleged that Kenneth had engaged in a pattern of harassing and abusive legal proceedings in a purported effort to inflict emotional and physical distress upon both Charlene and himself.² Mr. Fiorenzano further alleged that Kenneth's actions were motivated by his belief that he did not receive a proper share of his mother's estate under her will.³ Mr. Fiorenzano asserted, inter alia, that Kenneth had filed frivolous motions in the probate court and had filed a complaint with the Rhode Island State Police, alleging that Charlene had embezzled assets of the estate.

The probate court litigation was ultimately settled; and, on September 29, 2006, Kenneth and Charlene signed mutual releases.⁴ After the settlement of the probate court litigation, Kenneth commenced a civil action against an entity called Domestic Bank, alleging that it had mishandled the assets of his mother's estate. In the case at bar, Mr. Fiorenzano has alleged that Kenneth's harassment of him and his wife continued when defendant sought to depose each of them in connection with the Domestic Bank case.

Kenneth (the plaintiff in the Domestic Bank case and the defendant in the instant case) first attempted to depose Charlene in connection with the Domestic Bank litigation on February 14, 2008.⁵ When she appeared for the deposition, Charlene was accompanied by her attorney and by Mr. Fiorenzano. Counsel for Kenneth objected to the presence of Mr. Fiorenzano at the deposition, citing Rule 30(c) of the Superior Court Rules of Civil Procedure; that rule provides that all counsel of record must be given forty-eight hours notice if a non-party seeks to attend the deposition. In response to that objection, Charlene's counsel stated on the record that he had relied on Mr. Fiorenzano's assistance and that Mr. Fiorenzano's presence was necessary to assist counsel in his representation of Charlene. Charlene's counsel later stated that Mr. Fiorenzano was also needed "to provide comfort" to Charlene during the deposition. Kenneth's counsel refused to go forward with the deposition at that time due to the presence of Mr. Fiorenzano. The dispute about who could attend the deposition was subsequently brought before a hearing justice of the Superior Court, who issued a protective order precluding Mr. Fiorenzano from attending his wife's deposition; and Charlene was eventually deposed.

Subsequent to the above-referenced first attempt to depose Charlene (but before her deposition was actually taken), defendant, through counsel, sought to take the deposition of Mr. Fiorenzano. A subpoena requiring Mr. Fiorenzano to appear at the office of Kenneth's counsel for the taking of his deposition on March 13, 2008 was issued. Because of Mr. Fiorenzano's unavailability on March 13, 2008, his deposition was not taken on that date. Mr. Fiorenzano alleges that he has tried on numerous occasions to reschedule his deposition, but that defendant has "failed and refused" to do so. The plaintiff now contends that defendant's refusal to reschedule the deposition "demonstrat[es] that the real reason for serving process on Plaintiff is to harass and annoy him," rather than to actually obtain plaintiff's testimony.

Mr. Fiorenzano commenced the instant action in the Superior Court for Newport County on April 11, 2008. The plaintiff's complaint contained two substantive counts. The first count of the complaint alleged that Kenneth engaged in abuse of process by seeking to depose him and Charlene in the above-referenced action against Domestic Bank. Mr. Fiorenzano alleged that defendant noticed those depositions only for the purpose of further harassing him and his wife just as (according to Mr. Fiorenzano) defendant also did during the probate proceedings. The second substantive count was a loss of consortium claim that (according to Mr. Fiorenzano) stemmed from defendant's wrongful conduct toward both him and Charlene. The complaint also sets forth extensive allegations, many of which are unrelated to the present case, which describe numerous acrimonious interactions over the course of several years.

The defendant filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure; he simultaneously moved in the alternative for summary judgment pursuant to Rule 56 of the Superior Court Rules of Civil Procedure. The defendant's two-pronged motion was heard before a hearing justice of the Superior Court on June 2, 2008. After considering the submissions and arguments of the parties, defendant's dispositive motion was granted;⁶ the hearing justice ordered that judgment be entered in favor of defendant on all counts of plaintiff's complaint. In the course of rendering her decision, the hearing justice stated:

"The Court finds the instant Complaint to be scurrilous, bizarre[;] it is baseless, and it has components that are absolutely libelous and defamatory, per se, in that they purport to impute crimes baselessly to a person. This Complaint has no place in any court of integrity in the American judicial system, and the Court is dismissing it."⁷

Judgment was entered in favor of defendant in accordance with the above-referenced order. The plaintiff filed a timely notice of appeal on June 23, 2008. On appeal, plaintiff alleges that the hearing justice erred in dismissing his complaint.

Standard of Review

Due to the fact that the hearing justice considered materials outside of the complaint, we shall apply the Rule 56 summary judgment standard in evaluating the hearing justice's ruling. This Court reviews the granting of a motion for summary judgment in the same manner as did the motion justice, reviewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party. Chavers v. Fleet Bank (RI), N.A., 844 A.2d 666, 669 (R.I.2004); see also Planned Environments Management Corp. v. Robert, 966 A.2d 117, 121 (R.I. 2009); Carrozza v. Voccola, 962 A.2d 73, 76 (R.I.2009); Cullen v. Lincoln Town Council, 960 A.2d 246, 248 (R.I.2008); Estate of Giuliano v. Giuliano, 949 A.2d 386, 391 (R.I.2008). Summary judgment will be granted "if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Lynch v. Spirit Rent-A-Car, Inc., 965 A.2d 417, 424 (R.I.2009). The party opposing a motion for summary judgment "carries the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions." United Lending Corp. v. City of Providence, 827 A.2d 626, 631 (R.I.2003) (internal quotation marks omitted); see also Chavers, 844 A.2d at 669-70.

Analysis

I The Abuse of Process Claim

In spite of the inappropriately prolix nature of the complaint in this case, it is clear that plaintiff's allegation of abuse of process is based solely upon the fact that defendant attempted to depose him in the course of the Domestic Bank litigation.⁸ Mr. Fiorenzano did not file a motion to quash the subpoena with which he was served in connection with that third-party deposition; instead, he has alleged in the instant complaint that he had no connection with that particular case and that the service of a subpoena upon him constituted "the latest in a series of abusive and harassing actions by Defendant toward Plaintiff and Plaintiff's wife."

In order to state a claim for abuse of process,⁹ a plaintiff must show that "a legal proceeding, although set in motion in proper form, becomes perverted to accomplish an ulterior or a wrongful purpose for which it was not designed." Hillside Associates v. Stravato, 642 A.2d 664, 667 (R.I.1994); see also Palazzo v. Alves, 944 A.2d 144, 154 (R.I.2008); Hoffman v. Davenport-Metcalf, 851 A.2d 1083, 1090 (R.I.2004); Toste Farm Corp. v. Hadbury, Inc., 798 A.2d 901, 907 (R.I.2002); Butera v. Boucher, 798 A.2d 340, 353 (R.I. 2002). To prevail on an abuse of process claim, a plaintiff must prove: "(1) that the defendant instituted proceedings or process against the plaintiff and (2) that the defendant used these proceedings for an ulterior or wrongful purpose that the proceedings were not designed to accomplish." Palazzo, 944 A.2d at 154 (internal quotation marks omitted); see also Butera, 798 A.2d at 353.

With respect to the requirement that plaintiff must establish the presence of an improper purpose (see Palazzo, 944 A.2d at 154), this Court has quoted with approval the following passage from a respected treatise on the law of torts:

"The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or...