In RE: Keven A. McKenna PC v. Sumner D. Stone
MEMORANDUM AND ORDER entered. Judgment shall enter for Stone for $2,000.00 in unpaid wages against defendants. Judgment shall enter for defendants on all of Stone's remaining claims. So Ordered by Senior Judge Ronald R. Lagueux on 3/13/13. (Cavaco, Janice)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
C.A. No. 11-631
LISA GEREMIA, CHAPTER 7
TRUSTEE FOR KEVEN A. MCKENNA and
THOMAS P. QUINN, CHAPTER 7
TRUSTEE FOR KEVEN A. MCKENNA P.C.,
MEMORANDUM AND ORDER
This matter is before the court on the pro se appeal of Sumner
Stone, who seeks review of a final decision entered by the United
States Bankruptcy Court for the District of Rhode Island.
Sumner Stone (“Stone”) was working as a paralegal for Attorney
Keven A. McKenna (“McKenna”) and his law firm McKenna P.C.
On Stone’s final day on the job, he claims he was
assaulted by McKenna.
Stone filed a workers’ compensation claim,
and the Workers’ Compensation Court (“WCC”) determined that he was
entitled to benefits.
McKenna responded by filing multiple
pleadings in the WCC and various lawsuits in state courts to
contest that determination. Eventually, both McKenna and the P.C.
filed for bankruptcy and Stone filed his claims in those
Judge Arthur Votolato of the Bankruptcy Court heard the
trustees’ objections to Stone’s claims and, in a Decision and Order
In the Bankruptcy Court, these matters were designated BK
No. 10-10256 and AP No. 1:10-1069.
entered December 2, 2011, decided in favor of Defendants on all but
one issue. Judge Votolato granted Stone’s claim for unpaid wages in
the amount of $2,000.00.
As to the remaining issues, Judge
Votolato disallowed Stone’s claims, citing Stone’s lack of
evidentiary support for each allegation. Stone now appeals that
judgment. For the reasons outlined below, this Court agrees with
the decision and findings of Judge Votolato.
In 2008, McKenna hired Stone as an at-will employee to perform
paralegal services for his law firm.
Stone was to be paid $20.00
per hour, for a maximum of twenty hours per week. This arrangement,
and Stone’s employment, ended on March 30, 2009, when Stone alleges
that McKenna physically assaulted and injured him. Shortly
thereafter, Stone filed for workers’ compensation benefits.
Upon reviewing Stone’s claim, the WCC made several findings.
The first was that Stone had suffered a work-related injury,
leaving him partially incapacitated, for which he was entitled to
benefits. The second finding was that the P.C. had no insurance
coverage for the operative time period.
Finally, the WCC found
that neither workers’ compensation benefits nor attorney’s fees had
been paid to Stone.
After the employment relationship between Stone and McKenna
ended, the two skirmished in public over what had gone wrong.
October 5, 2010, The Providence Journal published an article
chronicling the dispute.
The article quoted McKenna as stating
that the Workers Compensation officials were “aiding and abetting a
Additionally, Stone alleges, McKenna publicly criticized
Stone’s paralegal skills to other local attorneys.
unable to find another paralegal position.
Stone’s misfortunes were compounded when a rental property he
owned in East Providence went into foreclosure. The property had
been abandoned by its tenants in early 2008, causing Stone to lose
rental income; however, Stone contends that the foreclosure was
caused by his financial problems resulting from his loss of
employment with McKenna and the P.C., and his subsequent inability
to secure employment.
As part of McKenna’s continuing efforts to avoid paying Stone
the benefits awarded by the WCC, McKenna filed defensive pleadings
there, and commenced numerous lawsuits in state courts and,
eventually, the present proceedings.
In January 2010, both McKenna and the P.C. filed for
bankruptcy under Chapter 11.
Stone filed claims in the individual
actions, many of them duplicate claims.
His claims against the
P.C. totaled $677,263; and his claims against McKenna individually
Both debtors filed adversary proceedings
challenging Stone’s claims.
Ultimately, trustees were appointed in
both cases and the cases were consolidated.
The cases were also
converted to Chapter 7 bankruptcies, as a result of McKenna’s
failure to meet the requirements of 11 U.S.C. §§ 1121(e) and
The trustee for the P.C. reached a settlement with Stone
on the workers’ compensation award, pursuant to which Stone
received weekly benefits, totaling $33,173.99, for a two-year
Bankruptcy Court Decision
Stone’s claims in the Bankruptcy Court, where he also appeared
pro se, were a mishmash. Judge Votolato prefaced his analysis by
stating that Stone failed to present sufficient evidence to support
any of his claims, with the exception of the unpaid wage claim.
Stone claimed that the P.C. had failed to pay him earned wages in
the amount of $2,985.00.
Judge Votolato allowed this claim in the
reduced amount of $2,000.00.
This award has not been challenged
and is not before the Court on appeal.
Stone filed three additional identifiable claims in the
Bankruptcy Court: one for defamation and defamation per se; one for
abuse of process and one for consequential damages.
dearth of evidence and his failure to set forth the prima facie
elements of his claims, Judge Votolato denied all three claims.
Stone now appeals this ruling.
Standard of Review
A bankruptcy court’s factual findings will not be overturned
unless clearly erroneous. Palmacci v. Umpierrez, 121 F.3d 781, 793
(1st Cir. 1997). Legal conclusions are reviewed de novo. Id.
Stone continues to argue strenuously about the fairness and
accuracy of his claims against McKenna and the P.C.
he has nothing of substance to add to his murky filings in the
Defamation and defamation per se
Stone claims that he has been defamed by McKenna and the P.C.
and has suffered damages in the amount of $125,000.
that McKenna made defamatory comments on October 8, 2010, October
14, 2010, and October 15, 2010.
To support this claim, Stone has
produced McKenna’s statement, published in The Providence Journal
on October 5, 2010, characterizing the WCC’s benefit award to Stone
as tantamount to “aiding and abetting a crook.”
In addition to the
newspaper article, Stone also claims that McKenna criticized him in
front of other attorneys, which precluded Stone from obtaining
However, despite the inclusion of specific dates
in his claims, Stone has not produced any specifics of other
defamatory comments made to other attorneys or elsewhere.
Stone focuses the Court’s attention on his subjective feelings of
Defamation is a state law cause of action and as such, Rhode
Island defamation law is applicable to Stone’s claim. In order to
make out a cause of action for defamation in Rhode Island, a
claimant must prove that a false and defamatory statement was made
concerning the claimant, and that there was an unprivileged
publication to a third party. Lyons v. Rhode Island Public
Employees Council 94, 516 A.2d 1339, 1342 (R.I. 1986). In addition,
the claimant must prove the speaker knew or should have known that
the statement was false. Id.
Finally, the claimant must prove
damages. Id. The burden of proof lies with the person claiming
defamation. Cullen v. Auclair, 809 A.2d 1107, 1113 (R.I. 2002).
In addition to his claim for defamation, Stone also alleges that
McKenna is guilty of defamation per se. Rhode Island law requires
that the elements of a specific crime be alleged by a defendant for
his statements to support a claim of defamation per se. See Marcil
v. Kells, 936 A.2d 308, 314 (R.I. 2007).
While recognizing that McKenna’s use of the work “crook”
carried negative connotations, Judge Votolato concluded that The
Providence Journal newspaper article was insufficient to support
Stone’s claims for defamation because McKenna’s comments placed as
much blame on the WCC as on Stone, and because Stone failed to
demonstrate that he suffered any damages resulting from the
As for Stone’s defamation per se claim, McKenna’s
derogatory characterization of Stone stopped short of outlining the
elements of a crime, or any specific misconduct on Stone’s part.
On appeal, Stone has offered no additional evidence as to
other defamatory statements made by McKenna, nor any additional
support to demonstrate that he sustained any damages as a result of
McKenna’s published comment.
Consequently, the judgment of the
Bankruptcy Court on these claims should be affirmed.
Abuse of process
Stone’s third claim in the Bankruptcy Court was for abuse of
process. To support this claim, Stone produced evidence of the
numerous pleadings and lawsuits which McKenna filed contending the
findings of the WCC.
Like the defamation claim, Stone’s claim for abuse of process
is based on state law. See Hoffman v. Davenport-Metcalf, 851 A.2d
1083, 1092 (R.I. 2004). Stone bears the burden of proving that
McKenna instituted proceedings against him, and that McKenna used
these proceedings for an ulterior or wrongful purpose that the
proceedings were not designed to accomplish. Id. at 1090. A claim
lacking in specificity as to the facts surrounding the claim, or
failing to show specific injury resulting from an alleged abuse of
process is insufficient to meet his burden of proof. Id.
In Bankruptcy Court, Stone recounted the extensive volume of
the court proceedings that McKenna launched to try to defeat
Stone’s workers’ compensation claim.
However, he failed to provide
evidence of McKenna’s ulterior motive or wrongful purpose.
Moreover, Stone again failed to allege that he suffered a specific
injury, other than distress.
Consequently, Judge Votolato found
that Stone did not meet his burden of proving this allegation.
Judge Votolato is correct that a large number of lawsuits on
their own is insufficient to prove a wrongful purpose.
failed to bring any new facts to light that would merit further
inquiry into this matter. For these reasons, the judgment of the
Bankruptcy Court on Stone’s claim for abuse of process is affirmed.
Finally, Stone claims that he is entitled to consequential
damages resulting from having his rental property lost through
foreclosure. As Judge Votolato pointed out, Stone’s claims for
consequential damages are the most inchoate and indeterminate of
all his claims.
Stone alleges that his loss, through foreclosure, of a rental
property in East Providence in May 2010 was the result of McKenna’s
refusal to pay Stone’s workers compensation benefits.
that the foreclosure resulted in loss of equity in the property in
the amount of approximately $100,000, including the bank’s legal
fees. However, Stone’s own testimony in the bankruptcy proceedings
contradicts his assertions.
Stone testified that his tenants abandoned the East Providence
property in September 2008. He also testified that the property had
not been rented since late 2007 or early 2008 due to numerous
housing code violations.
Additionally, Stone failed to produce
evidence relating to how he had previously been paying the mortgage
on the rental property and whether the payments were from rental
income or other sources.
Judge Votolato concluded that many of Stone’s problems
relating to this property pre-dated his troubles with McKenna.
While Stone had indeed presented evidence of his misfortunes, he
did not present specific evidence to demonstrate McKenna’s
liability for those misfortunes. Citing the basic legal principles
of causation, Judge Votolato stated that Stone had failed to
sustain his burden of proof, and thus disallowed the claim for
consequential damages as well.
As Judge Votolato noted, Stone alleges many things, blaming
all of his problems and misfortunes on McKenna, then leaves it up
to the Court, without any specific evidence, to decide if there
truly is any merit to his claims.
For all these reasons, the
judgment of the Bankruptcy Court disallowing Stone’s claim for
consequential damages is affirmed.
This Court concludes the Bankruptcy Judge made no clearly
erroneous findings of fact nor error of law.
Judgment shall enter
for Stone for $2,000.00 in unpaid wages against Defendants.
Judgment shall enter for Defendants on all of Stone’s remaining
It is so ordered.
/s/Ronald R. Lagueux
Ronald R. Lagueux
Senior United States District Judge
March 13 , 2013