Estate of Sergio Prete v. Probate Court of the Town of Narragansett, James L. Sheridan, Probate Judge. , 205 A.3d 463 ( 2019 )

Supreme Court
No. 2018-59-Appeal.
(WP 17-547)
Estate of Sergio Prete :
v. :
Probate Court of the Town of Narragansett, :
James L. Sheridan, Probate Judge.
ORDER
This case came before the Supreme Court on March 6, 2019, pursuant to an order directing
the parties to appear and show cause why the issues raised in this appeal should not be summarily
decided. Guiseppina Gagliano, as executrix for the estate of her late husband Sergio Prete, is
appealing from a Superior Court judgment dismissing her probate court appeal. After considering
the parties’ written submissions and reviewing the record, we conclude that cause has not been
shown and proceed to decide the appeal at this time.1 For the reasons set forth herein, we affirm
the judgment of the Superior Court.
In her role as executrix of her late husband’s estate, Gagliano has been trying to obtain
current information about the balance in each of the accounts her husband held with several
financial companies. Without formal legal representation, she enlisted the probate court’s
assistance in her quest for information, requesting that the probate court issue subpoenas duces
tecum to the companies. The probate court granted her requests and issued a subpoena for each
company, and each company responded. Gagliano, however, was convinced that the companies
had not provided all of the information she requested. She believed that each of the companies
1
Gagliano did not appear before us for oral argument of her appeal.
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she contacted had withheld information from her and that these companies had conspired to
withhold information and money from her husband’s estate.
In August 2017, the Narragansett Probate Court held a hearing to address Gagliano’s
requests to hold the companies in contempt and for reissuance of the subpoenas. The probate court
judge denied Gagliano’s motions and instead instructed Gagliano to send each company a letter
stating that they had two weeks to comply with the previously-issued subpoena or she would ask
the probate court to hold them in contempt. The probate court also instructed Gagliano to return
to the court on September 28 if she had not received a response to her letters putting the companies
on notice that she would seek a contempt order if they continued to withhold information. The
probate judge advised Gagliano several times to retain an attorney to assist with the estate, but she
did not hire counsel.
Thereafter, Gagliano filed nineteen miscellaneous petitions for the probate judge to
consider at the September 28 hearing, but she did not appear in court that day. She did not notify
the probate court that she was not going to appear, nor did she provide any reasons for her failure
to appear at the hearing after the hearing date had passed. On October 2, 2017, the probate judge
entered an order decreeing that “the executrix is not capable of proceeding pro se as the issues
involved in this estate have become too complicated and the executrix’s actions in this matter are
impeding the efficient and effective administration of this estate.” The probate court judge ordered
Gagliano to obtain legal representation by October 26, 2017, or he would remove her as executrix
of her husband’s estate.
Rather than retain counsel, Gagliano filed a timely claim of appeal from the October 2
order as well as a “Statement of Reasons of Appeal” in Washington County Superior Court,
naming the Narragansett Probate Court, through the probate court judge, as defendant. Gagliano
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effusively set out the reasons for her appeal, including accusations that the probate court had not
issued the subpoenas she requested in the form she submitted, the probate judge mistreated her
during the August 24 hearing, and the probate judge violated her constitutional rights by ordering
her to either hire an attorney or be removed as executrix of her husband’s estate. Gagliano also
claimed that the probate judge gave her permission not to appear at the hearing scheduled for
September 28 but then ultimately punished her with the October 2 order when she did not appear.
At least half of Gagliano’s forty-three-page “Statement of Reasons of Appeal” documented the
ways in which she believed the probate judge, the probate court staff, and the Narragansett assistant
town solicitor had harassed her or attempted to prevent her from pursuing her appeal to the
Superior Court.
The defendant filed a motion to dismiss the appeal, asserting that Gagliano’s claims of
error were not among the recognized purposes of judicial review of probate court decisions by the
Superior Court and that the probate judge was not a proper party-defendant. Gagliano filed a
written objection to defendant’s motion, but, again, did not attend the hearing. The defendant’s
motion to dismiss was heard in Superior Court on January 16, 2018. The hearing justice noted
Gagliano’s absence and granted defendant’s motion. Final judgment dismissing the appeal entered
on January 30, 2018. Gagliano filed a timely notice of appeal to this Court. We review the
dismissal of a probate court appeal for abuse of discretion. See In re Estate of Paroda, 845 A.2d
1012, 1017 (R.I. 2004).
Gagliano’s prebriefing statement provides a comprehensive summary of the travel of her
case through the probate court, Superior Court, and this Court, and incorporates by reference her
“Statement of Reasons of Appeal” that she filed in Superior Court. Other than making broad
claims of mistreatment by court staff, judges, and opposing counsel, for which we find no basis,
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Gagliano does not provide any legal argument about how the Superior Court hearing justice abused
her discretion by dismissing the probate court appeal. There is, therefore, no cognizable legal issue
for us to consider.
An appeal pursuant to G. L. 1956 chapter 23 of title 33 “is not an appeal on error but is to
be heard de novo in the [S]uperior [C]ourt.” Section 33-23-1(b). Therefore, “the effect of the
probate judge’s judicial attitude toward appellant is of no consequence.” Malinou v. McCarthy, 98
R.I. 189, 192, 200 A.2d 578, 579 (1964). “[T]he [S]uperior [C]ourt will decide the case on the
facts presented to it and on its view of the law applicable thereto without regard to the probate
judge’s decision or the alleged unjudicial motivations that may have prompted it.” Id. We also
note that Gagliano has undertaken the “very difficult task” of proceeding pro se, despite the probate
court’s repeated advice that she retain counsel to assist in her responsibilities as executrix of the
estate. Jacksonbay Builders, Inc. v. Azarmi, 869 A.2d 580, 585 (R.I. 2005). Accordingly, she is
entitled to some latitude by the courts, although not “greater rights than those [who are] represented
by counsel.”2 Id. (quoting Gray v. Stillman White Co., Inc., 522 A.2d 737, 741 (R.I. 1987)).
A careful review of the record and Gagliano’s written submissions reveal that Gagliano
has not raised any cognizable legal issues for our determination, including any way in which the
Superior Court justice abused her discretion when she dismissed this probate appeal. Accordingly,
the order of the Superior Court dismissing the appeal is affirmed, and the record of this case is
remanded to the Superior Court.
2
Specifically, Gagliano is not entitled to the personal communications or actions she has sought
from court staff or the ex parte communications she has sought at each stage of her case from any
of the judicial officers at the probate court, Superior Court, or this Court.
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Entered as an order of this Court on this 17th day of April, 2019.
By Order,
______________/s/________________
Clerk
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
ORDER COVER SHEET
Estate of Sergio Prete v. Probate Court of the Town of
Title of Case
Narragansett, James L. Sheridan, Probate Judge.
No. 208-59-Appeal.
Case Number
(WP 17-547)
April 17, 2019
Date Order Filed
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Washington County Superior Court
Source of Appeal
Associate Justice Sarah Taft-Carter
Judicial Officer From Lower Court
For Plaintiff:
Guiseppina Gagliano, Pro Se
Attorney(s) on Appeal
For Defendant:
Andrew H. Berg, Esq.
SU‐CMS‐02B (revised November 2016)