Malinou v. Rhode Island Hospital Trust Nat. Bank, 75-10-A

• Decision Date: 24 June 1976
• Docket Number: No. 75-10-A,75-10-A
• Citation: 116 R.I. 548,359 A.2d 43
• Parties: Martin MALINOU v. RHODE ISLAND HOSPITAL TRUST NATIONAL BANK. ppeal.
• Court: Rhode Island Supreme Court

Page 43

359 A.2d 43

116 R.I. 548

Martin MALINOU v. RHODE ISLAND HOSPITAL TRUST NATIONAL BANK.

No. 75-10-Appeal.

Supreme Court of Rhode Island.

June 24, 1976.

[116 R.I. 552] Martin Malinou, Providence, for plaintiff.

Henry M. Swan, Providence, for defendant.

OPINION

JOSLIN, Justice.

This is an appeal from a Superior Court judgment dismissing Martin Malinou's appeal from a decree of the Probate Court of the City of Providence. The case has its origins in the intestate death of Ernest V. Beazley in 1961. Malinou was then a member of the bar of this state and Public Administrator of the city of Providence. In his latter capacity he contested the petition of an allegedly 'remote cousion' of the decedent for the appointment of Rhode Island Hospital Trust National Bank (Hospital Trust) as administrator of the Beazley Estate and sought that appointment for himself. That contest was resolved against him by a judge in the Probate Court, by a jury in the Superior Court and by a unanimous opinion of this court to which reference is made for a complete recital of the significant circumstances. In that opinion our holding was that a public administrator should not be an 'intermeddler or engage in active competition with others for the appointment as the administrator of an estate,' and that in the circumstances Malinou was precluded 'from asserting any right to take charge and administer the decedent's estate.' Malinou v. Cairns, 105 R.I. 462, 466, 231 A.2d 785, 787, reargument denied, 102 R.I. 761, 231 A.2d 788, cert. denied, 389 U.S. 1015, 88 S.Ct. 590, 19 L.Ed.2d 660 (1967), rehearing denied, 390 U.S. 930, 88 S.Ct. 849, 19 L.Ed.2d 996 (1968).

In the current proceedings Malinou, who has long since ceased to hold the office of public administrator, seeks compensation for the legal services rendered in the earlier contest for the appointment of an administrator. Additionally, he challenges Hospital Trust's first account primarily because it denies the city of Providence use of the estate assets and also because it awards fees, commissions, compensation and expenses to Hospital Trust and its counsel.

The Probate Court denied Malinou's petition for counsel fees and rejected his objection to the allowance of Hospital Trust's account, and his appeal from the probate decree was dismissed in the Superior Court apparently on the trial justice's own motion. ¹

On appeal to this court Malinou argues that the meaning of the word 'aggrieved' as used in G.L.1956 (1969 Reenactment) § 33-23-1 ² was expanded by our opinion in Rhode Island Ophthalmological Soc'y v. Cannon, 113 R.I. 16, 317 A.2d 124 (1974), so that now all he need show to qualify as an appellant from the denial of his motion for an award of counsel fees is that he has sustained 'an injury in fact, economic or otherwise.' He further argues that the denial of his motion in fact constituted an economic injury, and that consequently the trial justice erred in dismissing this aspect of his appeal on lack of aggrievement grounds.

Assuming without deciding that this argument is sound, an alternative ground relied on by the trial justice for rejecting Malinou's claim was his judgment that our opinion in Malinou v. Cairns, supra, foreclosed Malinou's obtaining from the estate a fee for services rendered by Malinou the attorney for representing Malinou the intermeddling public administrator. Malinou has neither advanced any persuasive argument nor referred to any pertinent authority indicating that the trial justice erred in that judgment. But even if he did, Malinou would still be required to overcome the general rule which, in the absence of specific statutory authority or contractual liability therefor, prohibits counsel fees from being taxed as part of the costs of litigation or otherwise. Waite v. Board of Review of the Dep't of Employment Sec., 108 R.I. 177, 273 A.2d 670 (1971); Washington Trust Co. v. Fatone, 106 R.I. 168, 172, 256 A.2d 490, 493 (1969). ³ In an attempt to remove his claim from the operative scope of that rule, Malinou points to our recognition in Malinou v. Powers, 114 R.I. 399, 405, 333 A.2d 420, 423 (1975)...