Shirley Butler v. Kari Gavek

February 25, 2021

Supreme Court

No. 2019-124-Appeal.
(PC 18-5522)

Shirley Butler :

v. :

Kari Gavek et al. :

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
 Supreme Court

No. 2019-124-Appeal.
(PC 18-5522)

Shirley Butler :

v. :

Kari Gavek et al. :

Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.

OPINION

Chief Justice Suttell, for the Court. Under Rhode Island statutory law, does

a petition for partition survive the death of a joint tenant? In this case, the trial

justice, relying on well-established principles of common law, ruled that the

plaintiff’s demise terminated her interest in a joint tenancy, and she granted the

defendants’ motion to dismiss. It is our conclusion, however, that G.L. 1956

§ 34-15-12 abrogates the common law right of survivorship in a joint tenancy when

an action for partition is pending.

This case came before the Supreme Court pursuant to an order directing the

parties to appear and show cause why the issue raised in this appeal should not be

summarily decided. After considering the parties’ written and oral submissions and

reviewing the record, we conclude that cause has not been shown and that this case

may be decided without further briefing or argument. For the reasons set forth in

this opinion, we vacate the judgment of the Superior Court.

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 I

Facts and Travel

On August 1, 2018, the plaintiff, Shirley Butler (plaintiff), filed a partition

action in Superior Court, requesting that the court partition property she owned in

joint tenancy with the defendants, Clarence Butler (Butler) and Kari Gavek (Gavek)

(collectively defendants). On September 20, 2018, defendants filed their answer and

asserted counterclaims for unjust enrichment and breach of agreement. In December

2018, while the litigation was pending, plaintiff passed away.

On January 28, 2019, plaintiff’s attorney, Eric Bither (Attorney Bither),

notified defendants that plaintiff was deceased and that plaintiff’s estate was in the

process of selecting substitute counsel. Shortly thereafter, on February 1, 2019,

defendants moved pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil

Procedure to dismiss plaintiff’s partition action, on the basis that the action was moot

because the property was owned in joint tenancy with rights of survivorship and that,

therefore, plaintiff’s property interest had passed to the remaining joint tenants by

operation of law upon plaintiff’s death. On February 5, 2019, defendants filed an

omnibus calendar form indicating that a hearing on the motion to dismiss would be

held on February 26, 2019.

On February 7, 2019, Attorney Bither filed a suggestion of death upon the

record, in which he notified the court that he anticipated that an executor would be

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appointed by the Probate Court and that the Estate of Shirley Butler (the estate)

would have representation at the hearing on February 26, 2019. Additionally, on

February 11, 2019, Attorney Bither filed a notice with the Superior Court indicating

that the court “should continue the hearing on the Defendants’ Motion until after the

Estate is substituted into the case and the Defendants serve the attorney for the Estate

in accordance with the Superior Court Rules of Civil Procedure and as required by

due process.” In his notice, Attorney Bither called the court’s attention to

§ 34-15-12, which states, in part: “No action for partition shall be abated by the

decease of either of the parties plaintiff or defendant in the action.” Further,

Attorney Bither asserted that, because plaintiff had died, he no longer had authority

to take action in the case and that the appropriate party would be the representative

of the estate, who was scheduled to be appointed by the Probate Court on February

26, 2019.

On February 26, 2019, the hearing justice presided over the hearing on

defendants’ motion to dismiss. During the hearing, defendants objected to the

requested continuance, arguing that the case had become moot because plaintiff’s

interest in the property had passed to the defendants upon her death and that,

therefore, there was no property for the estate to partition. Attorney Bither, who was

present at the hearing, stated that he no longer had a client and did not represent the

estate; therefore, he was not at the hearing to argue or object. However, he again

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shared his belief that § 34-15-12 “indicates that the claim[] survives death.” In

granting defendants’ motion to dismiss, the hearing justice noted that the estate had

not filed a motion for continuance or an objection to the motion to dismiss. Further,

she held, “[i]f the estate wants to file something, they can go ahead and do so.”

On March 15, 2019, the hearing justice entered an order granting defendants’

motion to dismiss. Three days later, an attorney filed an entry of appearance on

behalf of the estate, as well as a motion to substitute parties. In the motion to

substitute, the estate alleged that Barbara Parrillo (Parrillo), the nominated executrix

in plaintiff’s will, began the process of opening a probate estate on January 3, 2019

and that the Johnston Probate Court had scheduled an initial hearing on the matter

for February 26, 2019. Further, the estate explained that at the February 26, 2019

probate hearing, Gavek appeared pro se and alleged that Parrillo had exerted undue

influence upon plaintiff, and, therefore, the will was not valid. As a result of this

allegation, the Probate Court continued the matter for two weeks and appointed

Parrillo as estate custodian. At a later hearing, on March 12, 2019, Gavek withdrew

her objection to the will, and the Probate Court appointed Parrillo as executrix of the

estate. The motion to substitute was never heard by the Superior Court, and final

judgment dismissing plaintiff’s complaint was entered on April 16, 2019.

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 On March 25, 2019, the estate filed a notice of appeal to this Court.1 On

appeal, the estate argues that the hearing justice’s dismissal of plaintiff’s partition

action was in contravention of § 34-15-12 and in violation of the estate’s due process

right to prior notice and the opportunity to be heard on defendants’ motion to

dismiss.2

II

Standard of Review

“The sole function of a motion to dismiss is to test the sufficiency of the

complaint.” Chariho Regional School District v. State, 207 A.3d 1007, 1012 (R.I.

2019) (quoting Pontarelli v. Rhode Island Department of Elementary and Secondary

Education, 176 A.3d 472, 476 (R.I. 2018)). “When this Court reviews the grant of a

motion to dismiss pursuant to Rule 12(b)(6), we apply the same standard as the

hearing justice.” Ferreira v. Child and Family Services, 222 A.3d 69, 74 (R.I. 2019).

“We assume the allegations contained in the complaint are true and view the facts in

1
Although the estate prematurely filed its notice of appeal, this Court “will treat the
appeal as if it had been timely filed after judgment was entered.” Sullivan v. Coventry
Municipal Employees’ Retirement Plan, 203 A.3d 483, 486 n.4 (R.I. 2019) (quoting
Arnold Road Realty Associates, LLC v. Tiogue Fire District, 873 A.2d 119, 125 n.4
(R.I. 2005)).
2
On January 14, 2020, following an initial prebriefing conference, we ordered that
this case be remanded to the Superior Court for entry of final judgment under Rule
54(b) of the Superior Court Rules of Civil Procedure in light of defendants’
counterclaims. Consistent with this order, final judgment was entered pursuant to
Rule 54(b) on February 25, 2020, and the case was returned to this Court.

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the light most favorable to the plaintiff.” Id. (brackets omitted) (quoting Chariho,

207 A.3d at 1012). “We will affirm a trial justice’s grant of a motion to dismiss

when it is clear beyond a reasonable doubt that the plaintiff would not be entitled to

relief from the defendant under any set of facts that could be proven in support of

the plaintiff’s claim.” Id. (quoting Chariho, 207 A.3d at 1012-13).

III

Discussion

On appeal, the estate argues that, pursuant to § 34-15-12, the petition for

partition survives plaintiff’s death notwithstanding the joint tenancy. Further, the

estate contends that its due process rights were violated when the hearing justice

dismissed the complaint before the executrix was appointed to represent the estate

and without providing the statutorily required notice to the heirs at law or devisees.

Conversely, defendants argue that the estate does not have standing to bring this

appeal because plaintiff’s death extinguished the claim for partition and the estate

was never a party to the underlying action.

A

Statutory Interpretation

We first address an issue of first impression for this Court: Whether a petition

for partition survives the death of a plaintiff pursuant to § 34-15-12. “We review

questions of statutory interpretation de novo.” Mello v. Killeavy, 205 A.3d 454, 459

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(R.I. 2019) (quoting State v. Hazard, 68 A.3d 479, 485 (R.I. 2013)). “In so doing,

our ultimate goal is to give effect to the purpose of the act as intended by the

Legislature.” Id. “It is well settled that ‘when the statutory language is clear and

unambiguous, we give the words their plain and ordinary meaning.’” Bayview Loan

Servicing, LLC v. Providence Business Loan Fund, Inc., 200 A.3d 153, 157 (R.I.

2019) (brackets omitted) (quoting Rein v. ESS Group, Inc., 184 A.3d 695, 702 (R.I.

2018)).

“The Rhode Island General Assembly has not defined a joint tenancy in real

property statutorily; the property interest exists, instead, under common law.” Ruffel

v. Ruffel, 900 A.2d 1178, 1188 (R.I. 2006). “A joint tenant of real property holds an

‘undivided * * * interest’ in the property.” Id. (quoting Lucchetti v. Lucchetti, 85

R.I. 105, 111, 127 A.2d 244, 248 (1956)). At common law, “upon the death of one

joint tenant, the remaining joint tenants acquire the entire estate by the right of

survivorship.” Knibb v. Security Insurance Company of New Haven, 121 R.I. 406,

410, 399 A.2d 1214, 1216 (1979). The Rhode Island General Assembly, however,

has the authority to modify common law as a matter of public policy, see Fournier

v. Miriam Hospital, 93 R.I. 299, 305, 175 A.2d 298, 301 (1961), and it has elected

to do so with regard to partition actions. See § 34-15-12 (governing the death of a

party in partition actions).

Chapter 15 of title 34 of the general laws governs actions for partition. More

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specifically, § 34-15-1 provides that joint tenants may compel partition by filing a

civil action.3 With regard to the death of a party during the pendency of a partition

action, § 34-15-12 states:

“No action for partition shall be abated by the decease of
either of the parties plaintiff or defendant in the action. In
case of the decease of either of the plaintiffs or defendants
in the action, the court shall cause the heirs at law or
devisees of the deceased party to be notified of the
pendency of the action in the same manner as if they had
been parties in the original action, and may, after the
notice has been given, render judgment in the action in the
same manner as might have been done had the heirs or
devisees been original parties in the action.”

Section 34-15-12 is unambiguous and clearly states that an action for partition is not

abated by the death of a plaintiff. Thus, when a joint tenant commences a civil action

for partition in accordance with § 34-15-1 but dies before the case terminates,

§ 34-15-12 clearly requires that the action continue to judgment with the heirs or

devisees of the decedent, “in the same manner as might have been done had the heirs

or devisees been original parties in the action.”

3
The full text of G.L. 1956 § 34-15-1 reads:
“All joint tenants, coparceners, and tenants in common,
who now are or hereafter may be actually seised or
possessed of any estate of inheritance in any lands,
tenements or hereditaments, whether in their own right or
as receiver appointed by any state or federal court, or as
trustee in bankruptcy, may be compelled to make partition
between them of those lands, tenements, and
hereditaments by civil action.”

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 Therefore, it is our opinion that the hearing justice erred in granting

defendants’ motion to dismiss without considering the effect of § 34-15-12. At the

hearing on defendants’ motion to dismiss, the hearing justice cited the common law

principle “that upon the death of one joint tenant, the remaining joint tenants acquire

the entire estate by right of survivorship”; and, relying solely on this common law

principle, she concluded that “the estate wouldn’t necessarily have standing to go

ahead and press whatever complaint [plaintiff] had.” This, however, is contrary to

the plain language of § 34-15-12.

Under the common law, the hallmark of a joint tenancy is the right of

survivorship; a joint tenant’s interest in the property passes to his or her joint co-

tenant(s) upon his or her death by operation of law. Our General Assembly,

however, has carved out an exception in cases where a petition for partition has been

filed but not yet proceeded to final judgment. See § 34-15-12. Given that the

statutory language of § 34-15-12 is clear and unambiguous, “this Court must

interpret the statute literally and must give the words of the statute their plain and

ordinary meanings.” Powers v. Warwick Public Schools, 204 A.3d 1078, 1086 (R.I.

2019) (quoting Whittemore v. Thompson, 139 A.3d 530, 540 (R.I. 2016)).

Accordingly, we are satisfied that the common law right of survivorship in a joint

tenancy is abrogated when an action for partition is pending.

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 B

The Estate’s Right to Appeal

We now turn to defendants’ argument that the estate lacked standing to bring

an appeal, as the estate was never a party to the underlying action. The defendants

cite the case of Hopp v. C.H.B. Development Corp., 669 A.2d 1152 (R.I. 1996), for

the proposition that “the ‘procedure for revival of an action by substitution of the

personal representatives is not a mere technicality but rather it is the sole means by

which the court obtains jurisdiction over the personal representative.’” Hopp, 669

A.2d at 1155 (quoting LesCarbeau v. Rodrigues, 109 R.I. 407, 410-11, 286 A.2d

246, 248 (1972)). They also suggest that the estate was dilatory in protecting its

interest because plaintiff died in December 2018, yet the motion to dismiss was not

heard until February 26, 2019, which “provided the [e]state with more than enough

time to take the necessary steps to try and substitute as a party-plaintiff in the

underlying action but it failed to do so.” We disagree.

We note that Parrillo, as executrix of plaintiff’s estate, alleges that she filed

her motion to substitute less than three months after plaintiff’s death and only a week

after her appointment as executrix4—far less time than in Hopp, where the executrix

filed a motion to substitute more than three years after she had been appointed. See

4
The Superior Court made no findings of fact concerning the estate, as Parrillo’s
motion to substitute was never entertained.

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Hopp, 669 A.2d at 1156. Significantly, defendants’ motion to dismiss was heard

and decided before the executrix was even appointed. Attorney Bither valiantly

appeared at the hearing but correctly advised the court that he could not act on behalf

of the estate.

The defendants also contend that the Supreme Court Rules of Appellate

Procedure do not permit a nonparty to file an appeal in a matter in which it was never

involved. We are of the opinion, however, that under § 34-15-12 the fact that Parrillo

was never formally substituted as a party is not fatal to her ability to appeal from the

final judgment of dismissal. As discussed supra, plaintiff’s decease did not abate

her action for partition. Thus, her death did not end the litigation, thereby

necessitating its “revival” by her estate; the litigation remained pending.

The statute further provides that, after notice to the heirs and devisees has been

given, the court may “render judgment in the action in the same manner as might

have been done had the heirs or devisees been original parties in the action.” Section

34-15-12. We believe this language signals an intent by the Legislature to treat heirs

and devisees, as represented by a decedent’s estate, as parties in the action. General

Laws 1956 § 9-24-1 provides that “[a]ny party aggrieved by a final judgment, decree,

or order of the superior court may, within the time prescribed by applicable

procedural rules, appeal to the supreme court.” As we have previously instructed,

this provision “must be read in light of our long-established rule that a person is

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aggrieved by a judgment when it adversely affects, in a substantial manner, his or

her personal or property rights.” Lombardi v. City of Providence, 69 A.3d 846, 850

(R.I. 2013) (brackets omitted) (quoting Adams v. United Developers, Inc., 121 R.I.

177, 179, 397 A.2d 503, 505 (1979)). In the instant action, the estate is clearly

aggrieved; if the dismissal is upheld, the estate will be left with no interest in the

property. See Lombardi, 69 A.3d at 850 (“an aggrieved party is one whose interest

in the lower court decision is actual and practical, as opposed to merely theoretical”

(quoting Adams, 121 R.I. at 180, 397 A.2d at 505)). Therefore, the estate’s appeal

is properly before this Court.

IV

Conclusion

For the reasons stated herein, we vacate the judgment of the Superior Court.

The record shall be returned to the Superior Court.

Justice Flaherty participated in the decision but retired prior to its publication.

Justice Lynch Prata and Justice Long did not participate.

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 STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case Shirley Butler v. Kari Gavek et al.

No. 2019-124-Appeal.
Case Number
(PC 18-5522)

Date Opinion Filed February 25, 2021

Justices Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.

Written By Chief Justice Paul A. Suttell

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Maureen B. Keough

For Plaintiff:

J. Robert Weisberger, Esq.
Attorney(s) on Appeal
For Defendants:

Nicole J. Martucci, Esq.

SU-CMS-02A (revised June 2020)