Henry et al v. Sheffield et al

Filing 39

OPINION AND ORDER granting in part and denying in part 31 Motion for Partial Summary Judgment. So Ordered by Judge William E. Smith on 4/16/12. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
________________________________________
)
)
)
)
)
v.
)
)
RICHARD B. SHEFFIELD; BRIAN G. BARDORF; )
WILLIAM R. HARVEY; QUENTIN ANTHONY;
)
MARY JO CARR; HARVEY CARR & HADFIELD;
)
DOUGLAS DAVIES HENRY; MARGARET KEMP
)
HENRY; individually and as Executrix of )
the Estate of David Vaughan Henry and
)
as constructive trustee over certain
)
property for the benefit of Nathan
)
Henry and Corinna Laszlo-Henry,
)
Defendants.
)
________________________________________)
NATHAN HENRY;
CORINNA LASZLO-HENRY,
Plaintiffs,

C.A. No. 09-332 S

OPINION AND ORDER
WILLIAM E. SMITH, United States District Judge.
Before the Court is a motion for partial summary judgment
filed

by

Defendants

Richard

B.

Sheffield,

Brian

G.

Bardorf,

William R. Harvey, Quentin Anthony, Mary Jo Carr, and Harvey
Carr

&

(Defs.’

Hadfield
Mot.

(collectively,

Partial

Summ.

J.,

the
ECF

“Movant
No.

31.)

Defendants”).
The

Movant

Defendants move for summary judgment as to all claims asserted
against them by Plaintiff Corinna Laszlo-Henry (“Plaintiff” or

“Corinna”).1

For the reasons set forth below, the motion is

granted in part and denied in part.
I.

Background
The Court’s brief recitation of facts begins with Captain

Eugene Henry (“Captain Henry”), who executed a will on August
21, 1992 (the “1992 will”).

Captain Henry’s 1992 will provided

that trusts be established for his two sons – Defendant Douglas
Davies Henry (“Doug”) and David Vaughan Henry (“David”).

(Ex. A

to Defs.’ Statement of Undisputed Facts 2, ECF No. 32.)

David

is

the

father

of

Plaintiff

Corinna

and

co-Plaintiff

Nathan

Henry.
The terms of the two trusts were not identical.

Doug was

to receive trust income for five years after Captain Henry’s
death and would thereafter receive the corpus.

(Id. at 3.)

David, on the other hand, would receive trust income for life,
and upon David’s death, the corpus would pass to his living
“descendants.”

(Id. at 2-3.)

On December 2, 1994, Captain Henry executed a codicil to
his

will

David’s

(the
trust.

“1994

codicil”),

Pursuant

to

which

the

1994

modified
codicil,

the

terms

David

of

would

receive income for five years, after which the corpus would be
distributed

to

his

living

“descendants.”

1

(Ex.

6

to

Pl.’s

Because many of the parties in this action share the same
last name, the Court refers to those individuals by first name.
2

Statement of Undisputed Facts 2, ECF No. 35-6.)

What remains in

dispute is Captain Henry’s intent in executing the codicil –
while Defendants contend that Captain Henry intended to make
David’s trust mirror Doug’s trust, the codicil as drafted did
not have that effect.
Captain Henry died on June 21, 1995.

On July 10, 1995,

Defendant Doug filed a petition to open a probate estate in the
Portsmouth Probate Court.

Appended to that petition was an

affidavit sworn by Defendant Sheffield, the attorney who drafted
the 1994 codicil.

(Ex. C, ECF No. 32.)

Sheffield averred that

“certain words [in the 1994 codicil] were omitted inadvertently
from the second paragraph of the David Vaughn [sic] Henry Trust”
(id. at ¶ 7) and that he could “unequivocally state that Eugene
B. Henry intended that his sons, David and Douglas, with respect
to

the

net

income

treated equally.”
also

provided

from

their

respective

(Id. at ¶ 8.)

text

“to

accurately

trusts,

were

to

be

In his affidavit, Sheffield
reflect

the

intention

of

Eugene B. Henry,” which provided that David would receive income
for five years and would thereafter receive the corpus.
¶ 9.)
not

(Id. at

It is undisputed that Plaintiffs Corinna and Nathan did

receive

notice

of

these

probate

proceedings.

(Pl.’s

Undisputed Facts ¶ 53, ECF No. 35.)
On July 11, 1995, a decree (the “1995 decree”) entered in
the Portsmouth Probate Court, in which the court (1) admitted
3

the

1992

will

to

probate;

(2)

found

that

the

1994

codicil

erroneously omitted certain words that Captain Henry intended to
include;

and

(3)

corrected

and

amended

the

1994

codicil

to

conform to the intention of Captain Henry by substituting the
language contained in Sheffield’s affidavit.
32.)

(Ex. D, ECF No.

Thereafter, a trust was created for David – he received

income for five years, and the corpus was disbursed to him in
June of 2000.
In the fall of 2004, Plaintiff Corinna “learned . . . that
changes

that

might

concern

her

had

probate of her grandfather’s will.”
62, ECF No. 35.)

been

undertaken

in

the

(Pl.’s Undisputed Facts ¶

Corinna contacted the Portsmouth Probate Court

in December of 2004 or January of 2005, and she received a copy
of the probate court file from the clerk in February of 2005.
(Id. at ¶ 63.)
More than three years later, on November 20, 2008, coPlaintiff Nathan filed a motion in the Portsmouth Probate Court
to reopen the estate and vacate the 1995 decree.
No. 32.)
decision
Court.

(Ex. F, ECF

The 1995 decree was vacated on January 1, 2009, a
which

was

unsuccessfully

appealed

to

the

Superior

David died shortly thereafter on February 16, 2009,

survived by his wife Defendant Margaret “Peggy” Kemp Henry.
On July 28, 2009, Plaintiffs Nathan and Corinna filed the
instant

action.

In

their

Amended
4

Complaint,

Plaintiffs

set

forth the following claims: (1) Count I, Restitution, against
Defendant Peggy; (2) Count II, Breach of Fiduciary Duty, against
Defendants Sheffield, Doug, and Peggy; (3) Count III, Tortious
Interference with Inheritance, against Defendants Sheffield and
Doug;

(4)

Count

IV,

Legal

Malpractice,

against

Defendants

Sheffield and Harvey; (5) Count V, Negligence, against Defendant
Sheffield; (6) Count VI, Fraud, against Defendant Sheffield; and
(7)

Count

VII,

Vicarious

Liability,

against

Defendants

Sheffield, Bardorf, Harvey, Anthony, Carr, and the law firm of
Harvey Carr & Hadfield.
The

Movant

(Am. Compl., ECF No. 12.)

Defendants,

which

are

those

defendants

implicated in Count VII,2 have moved for summary judgment against
Plaintiff Corinna3 on all counts, except Count I.4

As to Count

III,

inheritance,

the

viable

under

tortious

Defendants
Island law.

argue

interference
that

it

is

with
not

a

claim

Movant
Rhode

As to Counts II, IV, V, and VI, Defendants contend

that Plaintiff Corinna’s claims are barred by the applicable
statutes of limitations.
2

Defendants Doug and Peggy are not parties to this motion.

3

Defendants do not move for summary judgment against coPlaintiff Nathan.
4

While the Movant Defendants’ motion does not refer to
Count VII, Vicarious Liability, they note in their memorandum in
support that, if the other counts are dismissed, then Count VII
should also be dismissed, arguing that there can be no vicarious
liability where there is no primary liability. (Mem. of Law in
Support of Def.’ Mot. Summ. J. 5 n.4, ECF No. 31.)
5

II.

Discussion
A.

Legal Standard

Summary judgment is appropriate when, viewing the evidence
in the light most favorable to the nonmoving party, there are no
genuine issues of material fact, thereby entitling the moving
party to judgment as a matter of law.

Morelli v. Webster, 552

F.3d 12, 18 (1st Cir. 2009).
B.

Tortious Interference with Inheritance

The Rhode Island Supreme Court has not yet had occasion to
address

the

question

of

whether

a

cause

of

action

lies

for

tortious interference with inheritance under Rhode Island law.
Accordingly, in borrowing Rhode Island law for this particular
question, the Court must make “an informed prophecy of what
[that] court would do in the same situation,” seeking “guidance
in analogous state court decisions, persuasive adjudications by
courts of sister states, learned treatises, and public policy
considerations identified in state decisional law.”

Blinzler v.

Marriott Int’l, Inc., 81 F.3d 1148, 1151 (1st Cir. 1996).

“As

long as these signposts are legible, [this Court’s] task is to
ascertain the rule the state court would most likely follow
under

the

circumstances,

even

if

[the

judgment on the question might differ.”

Court’s]

independent

Id.

The First Circuit made just such an informed prophecy on
this very question in Umsted v. Umsted, 446 F.3d 17 (1st Cir.
6

2006).

In Umsted, the court determined that “Rhode Island would

adopt the majority position that a cause of action for tortious
interference with an expectancy of inheritance, if it lies at
all,

would

not

lie

available

but

has

added).

Plaintiff

where

not

been

has

an

adequate

pursued.”

presented

no

statutory
Id.

at

argument

remedy

22
to

is

(emphasis
support

a

departure from Umsted.
Accordingly,
whether

the

remedy.”
“Action

in

Probate

Id.
in

as

name

A
of

Umsted,

Court

Rhode

offered

Island

estate

the

“question

remains,

[Plaintiff]

an

adequate

provision

entitled

interested

person,”

statutory

prosecuted

by

then

provides as follows:
If an administrator, executor, or guardian shall be
requested by any person legally interested in the
estate of a deceased person, . . . to commence an
action or proceeding to recover any property, personal
or real, which the legally interested person may have
reason to believe should be recovered for the benefit
of the estate, and if the administrator, executor, or
guardian shall, for fifteen (15) days after written
notice so to do, . . . refuse, neglect or for any
reason be incompetent, to commence the action or
proceeding,
the
legally
interested
person
may
institute proceedings in the name of the estate of the
deceased person, or person under guardianship, in the
same
manner
and
to
the
same
extent
as
the
administrator, executor, or guardian may do . . . .
R.I. Gen. Laws § 33-18-17.

As legatees under Captain Henry’s

will, as well as intestate heirs, there is no question that
Plaintiffs

Corinna

and

Nathan

qualify

as

interested in the estate of a deceased person.”
7

persons

“legally

See Umsted, 446

F.3d at 23.

Accordingly, in their capacity as beneficiaries of

Captain Henry’s estate, Plaintiffs “had standing to bring the
state court action for what [they] perceive[] to be ‘the benefit
of the estate’ and [their] interest in it.”

Haffenreffer v.

Coleman, C.A. No. 06-299T, 2007 WL 2972575, at *3 (D.R.I. Oct.
10, 2007) (emphasis added).
In Umsted, the court held that the statute could have been
utilized

to

recover

real

property

that,

according

to

the

plaintiffs, had been wrongfully conveyed out of the estate prior
to the death of the testator.

Umsted, 446 F.3d at 23.

court

“[i]f

further

observed

that,

successful,

And the

the

property

would have been returned to the estate, where it would then have
passed pursuant to the terms of [the] will.”
first

argues

that

Umsted

is

Id.

distinguishable

Plaintiff

because

the

“wrongful conduct” in the instant case, viz., the successful
efforts to amend the codicil during the probate proceedings,
occurred after the death of Captain Henry.

And while it may be

true that Umsted is factually distinguishable in that respect,
the

plain

language

limitation.

See

contemplates

that

of

R.I.
it

the

statute

Gen.

Laws

§

used

“to

may

be

itself

contains

33-18-17.
recover

no

The
any

such

statute

property,

personal or real, which the legally interested person may have
reason to believe should be recovered for the benefit of the

8

estate.”

Id.

It is absolutely silent as to when that property

may have left the estate.
Plaintiff

next

argues

that

the

statute

is

inapplicable

because the claim does not belong to Captain Henry’s estate but
belongs

instead

authority
recover

in

to

her

support

property

and

of

Nathan.

the

distributed

Plaintiff

proposition
in

has

that

accordance

with

an

no

action

an

cited

to

allegedly

improper modification of a codicil to a will would not be “for
the benefit of the estate.”

Moreover, “[w]hile R.I. Gen. Laws §

33-18-17 permits an interested beneficiary to sue ‘in the name
of’ an estate, it does not convert such a suit into a suit by
the estate.”
original).

Haffenreffer, 2007 WL 2972575, at *4 (emphasis in

To the extent that certain of Captain Henry’s estate

assets were disbursed pursuant to an improper amendment to his
will

and

certainly

codicil,
be

for

an
the

action
benefit

to
of

recover
the

that

estate,

property
as

a

would

means

of

carrying out Captain Henry’s testamentary intent, even if it
would also benefit Plaintiffs Corinna and Nathan.

Coupled with

Nathan’s successful motion to vacate the 1995 decree, Section
33-18-17

would

have

provided

an

adequate

vehicle

to

pursue

recovery of the property that had been disbursed pursuant to
that decree.

9

C.

Statutes of Limitations

The

Movant

breach

of

Defendants

fiduciary

duty,

argue
legal

that

Corinna’s

malpractice,

claims

for

negligence,

and

fraud are all barred by the applicable statutes of limitations.
1.

The Probate Exception

Corinna first argues that, because this matter was subject
to the probate exception, she could not have asserted these
claims before the probate court vacated the 1995 decree.

The

Supreme Court has described the probate exception as follows:
[T]he probate exception reserves to state probate
courts the probate or annulment of a will and the
administration of a decedent’s estate; it also
precludes federal courts from endeavoring to dispose
of property that is in the custody of a state probate
court.
But it does not bar federal courts from
adjudicating
matters
outside
those
confines
and
otherwise within federal jurisdiction.
Marshall v. Marshall, 547 U.S. 293, 311-12 (2006).
the

Supreme

Court

expressly

held

that

a

claim

In Marshall,
for

tortious

interference with an expectancy of inheritance was not subject
to the probate exception.

Id. at 312.

Much like that claim,

the other claims asserted by Plaintiff in this case (1) seek in
personam judgments against individual Defendants, and “not the
probate or annulment of a will,” id.; (2) do not “involve the
administration of an estate, the probate of a will, or any other
purely probate matter,” id. (quoting Marshall v. Marshall (In re
Marshall), 392 F.3d 1118, 1133 (9th Cir. 2004));

10

and (3) do not

seek “to reach a res in the custody of a state court.”

Id.

Moreover, “no ‘sound policy considerations’ militate in favor of
extending the probate exception to cover the case at hand” and
state probate courts do not possess any special proficiency in
handling these types of claims.

Id.

Accordingly, these claims

are not subject to the probate exception.
2.

Equitable Tolling and Equitable Estoppel

Corinna’s second line of defense is that the doctrines of
equitable tolling and equitable estoppel should apply.5
Island,

“equitable

tolling

is

an

exception

to

the

In Rhode
general

statute of limitations . . . and is available to litigants who
suffer from debilitating mental incapacity.”

Johnson v. Newport

Cnty. Chapter for Retarded Citizens, Inc., 799 A.2d 289, 292
(R.I. 2002) (emphasis added).

Since Plaintiff Corinna does not

claim to have suffered from a “debilitating mental incapacity,”
and

offers

no

authority

to

support

doctrine, it is of no aid to her.

5

an

expansion

of

this

See id.

While Plaintiff cites authority from a number of federal
circuit courts of appeals (with no objection from Defendants on
the choice of law), state law governs the applicability of these
doctrines. See Wright & Miller, Federal Practice and Procedure
§ 1056 at 244-46 (“In diversity of citizenship cases, however,
state law governs the tolling of the statute of limitations
under the doctrine of Erie Railroad Company v. Tompkins and its
progeny.” (internal footnote omitted)); cf. Chico-Velez v. Roche
Prods., Inc., 139 F.3d 56, 58 n.3 (1st Cir. 1998) (“Given that
the relevant limitation period originates in a federal statute,
the issue of equitable tolling is governed by federal law.”).
11

Equitable estoppel may be applied “to stop the running of
the statute of limitations as a defense where the particular
facts warrant its application.”

Wolf v. S.H. Wintman Co., 169

A.2d 903, 905 (R.I. 1961); see also Gross v. Glazier, 495 A.2d
672, 673 (R.I. 1985).

However, “application requires more than

mere inaction or silence by a person who has no obligation to
speak or act . . . .”

Wolf, 169 A.2d at 905.

Put another way,

the doctrine can also be applied in the context of inaction or
silence by a person who has a duty to speak or act.
Here,

it

is

clear

that

such

a

duty

See id.

existed.

When

Defendants Sheffield and Doug attempted to reform the will and
codicil in their petition to probate the will, the proceedings
were

essentially

transformed

into

a

reformation

limited will contest on a mistake theory.

action

or

a

By the terms of the

will and codicil, as written at the time of Captain Henry’s
death, Plaintiffs Corinna and Nathan had an interest in Captain
Henry’s

estate

and

were

necessary

parties

to

a

reformation

action, the goal of which was to eliminate that interest.

See

R.I. Gen. Laws § 33-22-46; cf. Indus. Trust Co. v. Harrison, 21

6

Section 33-22-4 provides in pertinent part as follows:

Whenever, in any proceeding pending in probate court
for the probate of a will, it appears to the court
that the probate of the will . . . is to be contested
. . . , the court shall forthwith cause to be entered
upon its records an order requiring the petitioner to
file with the clerk of court the same information
12

A.2d 254, 255 (R.I. 1941) (“All necessary parties are before the
court and have filed answers.

A guardian ad litem was appointed

by

minor

the

superior

court

for

respondents,

and

also

a

representative for persons not in being and for unascertained
and

contingent

interests.”

(emphasis

added)).

Accordingly,

equitable estoppel applies to stop the running of the statutes
of limitations against Plaintiff Corinna.
3.

Breach of Fiduciary Duty, Legal Malpractice, and
Negligence

Defendants

contend

that,

under

Rhode

Island

law,

Plaintiffs’ claims for breach of fiduciary duty and negligence
are subject to the three-year statute of limitations applicable
to legal malpractice claims.
In Rhode Island, “[a] claimant cannot evade . . . time bars
merely

by

failing

to

mention

the

drafting the pleading in question.”
Ernst

&

Young,

LLP,

818

A.2d

721,

word

‘malpractice’

when

Bowen Court Assocs. v.
727

(R.I.

2003).

Where

“negligence claims against professional defendants challenge the
quality, effectiveness, nature, or propriety of the professional
services rendered, such claims are subject to the applicable
malpractice

statute

of

limitation,

regardless

of

whether

relative to legatees and devisees . . . as is required
relative to a surviving spouse and heirs at law; and
the petitioner or his or her attorney shall give or
cause notice to be given to those legatees and
devisees . . . .
13

the

claimants can establish contractual or professional privity with
the

professional

claim

for

defendants.”

negligence

Id.

challenges

Here,

the

since

“quality,

Plaintiffs’

effectiveness,

nature, or propriety of the professional services rendered” by
Defendant

Sheffield,

it

is

subject

to

the

same

statute

of

limitations as Plaintiffs’ legal malpractice claim.
Similarly, “[a] claim by a client against an attorney for
breach of fiduciary duties is a claim for legal malpractice.”
Cronan v. Iwon, 972 A.2d 172, 175 (R.I. 2009) (mem.) (holding
breach of fiduciary duty claimant to same expert evidentiary
requirements as legal malpractice claimant).
fiduciary

duty

claim

in

this

context

is

“a

If a breach of
claim

for

legal

malpractice,” it follows that it should be subject to the same
statute of limitations.
Legal

malpractice

See id.
claims

are

subject

to

a

three-year

statute of limitations, with a discovery rule, which provides as
follows:
In respect to those injuries due to acts of legal
malpractice which could not in the exercise of
reasonable diligence be discoverable at the time of
the occurrence of the incident which gave rise to the
action, suit shall be commenced within three (3) years
of the time that the act or acts of legal malpractice
should, in the exercise of reasonable diligence, have
been discovered.
R.I. Gen. Laws § 9-1-14.3(2).

It is undisputed that Plaintiff

Corinna learned in the fall of 2004 that a change was made to

14

Captain

Henry’s

interests.

will

(or

to

the

codicil)

that

affected

her

It is also undisputed that she received the entire

probate court file in February of 2005.

Accordingly, at the

latest in February of 2005, any claims for breach of fiduciary
duty,

legal

malpractice,

or

negligence,

could

have

been

discovered by her “in the exercise of reasonable diligence.”
And since the instant action was not filed until more than four
years later, in July 2009, those claims are barred.
4.

Fraud

The parties are in agreement that Plaintiffs’ claim for
fraud is subject to Rhode Island’s catchall ten-year statute of
limitations.7

However, as determined supra, equitable estoppel

applies to stop the running of the statute of limitations until
Plaintiff Corinna’s discovery in February of 2005.

Since suit

was filed within ten years of that time, Corinna’s fraud claim
may proceed.
7

Defendants contend that R.I. Gen. Laws § 9-1-20 is not
applicable to this case to toll the statute of limitations.
Section 9-1-20 provides as follows:
If any person, liable to an action by another, shall
fraudulently, by actual misrepresentation, conceal
from him or her the existence of the cause of action,
the cause of action shall be deemed to accrue against
the person so liable at the time when the person
entitled to sue thereon shall first discover its
existence.
Plaintiff, on the other hand, does not counter that this
provision is applicable.
Accordingly, the Court considers any
argument as to the applicability of Section 9-1-20 waived.
15

III. Conclusion
For

the

motion

for

DENIED

in

against

reasons

partial
part.

the

Movant

set

forth

summary
All

in

judgment

claims

this
is

asserted

Defendants,

except

opinion,
GRANTED
by

/s/ William E. Smith
William E. Smith
United States District Judge
Date: April 16, 2012

16

in

part

Plaintiff

for

vicarious liability claims, are hereby DISMISSED.

IT IS SO ORDERED.

Defendants’

the

and

Corinna

fraud

and