Estate of John P. Garan

May 10, 2021

Supreme Court

No. 2019-406-Appeal.
(PP 17-4786)

Estate of John P. Garan. :

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
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be made before the opinion is published.
 Supreme Court

No. 2019-406-Appeal.
(PP 17-4786)

Estate of John P. Garan. :

Present: Suttell, C.J., Goldberg, Robinson, and Lynch Prata, JJ.

OPINION

Justice Lynch Prata, for the Court. The appellant, Virginia Garan, has

appealed from a judgment of the Superior Court following the grant of summary

judgment in favor of the appellee, Laurel Conway, on the basis that the appellant

failed to perfect her probate appeal to that court, under the requirements of G.L. 1956

§ 33-23-1. This case came before the Supreme Court for oral argument on March

31, 2021, pursuant to an order directing the parties to show cause why the issues

raised in this appeal should not be summarily decided. After hearing counsel’s

arguments, reviewing the record below, and carefully considering the memoranda

submitted by the parties, this Court is satisfied that cause has not been shown.

Therefore, we will decide the appeal at this time. For the reasons set forth below,

we reverse the decision and vacate the judgment of the Superior Court.

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 Facts and Travel

The appellant is the surviving spouse of the decedent, John P. Garan, a former

Pawtucket attorney. Although they were still married, appellant and Mr. Garan had

been living separately when he died on May 25, 2015, after being hospitalized with

cancer. The appellant subsequently objected to probate of Mr. Garan’s last will and

testament, which had been executed on October 4, 2014. The contested will named

appellee, Mr. Garan’s married secretary and former college girlfriend, as executrix

and left his law firm assets to her. The appellant contended that the will was

procured and drafted under circumstances that raised questions concerning undue

influence and lack of testamentary capacity.

After hearing testimony and examining documents submitted to the court, the

judge of the Pawtucket Probate Court issued a written decision and order on

September 7, 2017. The probate judge found that decedent had testamentary

capacity, that his will was duly executed, and that there was no evidence to support

the allegation of undue influence; consequently, she admitted the will to probate and

appointed appellee as executrix.

Nineteen days after the entry of the decision and order, on September 26,

2017, appellant filed her claim of appeal in the probate court. She returned later the

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same day to file a second version of the claim of appeal, largely identical to the first.1

Form language included on both claims stated that the undersigned claimant

“request[s] a certified copy of said claim[.]” She paid at least $1.50 for a copy to

the clerk that day.

A legal administrative assistant for appellant’s subsequently retained counsel

visited the probate court clerk’s office on October 4, 2017, requesting and obtaining

certified copies of appellant’s two claims of appeal and paying fees totaling $10.18

for certified copies of both. On October 6, 2017, appellant filed her reasons of appeal

in the Superior Court, again alleging a lack of testamentary capacity and undue

influence. Included with her filing was the certified copy of her second claim of

appeal, which copy had been issued by the probate court on October 4, 2017.

In her answer, appellee alleged as her first affirmative defense that appellant

had failed to perfect her appeal. The appellee later filed a motion for summary

judgment, reiterating her contention that appellant had failed to perfect her appeal

under §§ 33-23-1 and 33-23-8. In support of her motion, appellee submitted an

affidavit from Holly St. Jean, a municipal clerk at the Pawtucket Probate Court. Ms.

1
The first claim of appeal stated that appellant was aggrieved by the probate court’s
actions, because it “[d]enied claim of undue influence, denied challenge to
testamentary capacity, denied Petition objecting to appointment of Executrix,
including related issues.” The second claim restated the complained-of actions as
having “[d]enied claim of undue influence; denied challenge to testatmentary [sic]
capacity; denied Petition objecting to appointment of Executrix.”

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St. Jean stated that “[w]hen anyone appears in person at the clerk’s office to order a

certified copy, it is the practice of the office to issue the certified copy that same

day.”

The appellant opposed the motion for summary judgment, claiming to have

complied with the statutory requirements for perfecting her appeal. As evidence,

she submitted two affidavits and two receipts showing payments totaling $11.68 in

fees at the probate court clerk’s office therewith. In her supplemental memorandum

in reply to appellant’s opposition to the motion for summary judgment, appellee

contested the sufficiency of the fees documented by the receipts, providing a list of

fee amounts from the Pawtucket Probate Court indicating that certified copies cost

at least $3 and asserting that the fees were required to be paid within the statutory

filing period. The appellant then filed a surreply, attaching an amended affidavit

wherein she alleged that she had requested and paid for a certified copy of the first

claim of appeal using a $10 bill without obtaining a receipt.

At the initial hearing on appellee’s motion, the hearing justice reserved her

decision and scheduled a subsequent hearing, to allow appellee additional time to

respond to appellant’s reply and amended affidavit. The appellee thereafter filed a

limited reply, arguing that the absence of any proof of a written request for a certified

copy of the second claim of appeal was dispositive of appellant’s failure to perfect

her appeal. The appellee also argued that appellant’s failure to produce evidence

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demonstrating that she paid for a certified copy within the statutory period proved

that she did not comply with the statute. Included in the reply was a second affidavit

from Ms. St. Jean.

At the subsequent summary judgment hearing, appellee again claimed that

appellant had failed to file a written request for a certified copy: “There is just simply

no evidence before this [c]ourt that she complied with the jurisdictional requirement

to file a request for a certified copy and pay the clerk the fees.” The appellee did

agree that “there is no requirement that the certified copy date-stamped from the date

of appeal is necessary to be filed in the [S]uperior [C]ourt.” The appellant argued

that her amended affidavit provided sufficient evidence that she had requested and

paid for a certified copy of the first claim of appeal. 2

The hearing justice granted the motion for summary judgment, making the

following findings. First, the hearing justice found that it was “absolutely

undisputed that a notice of appeal was filed within the first * * * 20-day period.”

Second, the hearing justice found that “the evidence does not show” that appellant

made “a request for a certified copy of the claim.” The hearing justice noted that, in

two separate affidavits, appellant never claimed to have requested a certified copy

2
After noting that neither affidavit from appellant stated that she made a request to
the clerk for a certified copy of her second claim of appeal, the hearing justice stated
that the second affidavit was “obtuse” as to appellant’s failure to procure a certified
copy of that claim. However, the hearing justice also stated that she was “certainly
not making credibility determinations on a motion for summary judgment.”

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of the second claim, which she “clearly intended to be the operative notice of

appeal.” The hearing justice again found that the second affidavit was “vague, and

it skirts the issues.” Therefore, given her finding of “no showing” that “the appellant

requested and paid for a certified copy of the second notice of appeal[,]” and her

understanding that the statute required strict compliance, the hearing justice granted

the motion for summary judgment.

Judgment entered for appellee, affirming the probate court decree and denying

and dismissing appellant’s appeal. Thereafter, appellant timely appealed to this

Court.

Standards of Review

“This Court reviews de novo a trial justice’s decision granting summary

judgment.” Glassie v. Doucette, 157 A.3d 1092, 1096 (R.I. 2017) (quoting Sola v.

Leighton, 45 A.3d 502, 506 (R.I. 2012)). “Summary judgment is appropriate only

when the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.”

Id. (brackets omitted) (quoting Sola, 45 A.3d at 506). “Only when a review of the

admissible evidence viewed in the light most favorable to the nonmoving party

reveals no genuine issues of material fact, and the moving party is entitled to

judgment as a matter of law, will this Court uphold the trial justice’s grant of

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summary judgment.” Id. (quoting Sola, 45 A.3d at 506). “Summary judgment is a

drastic remedy, and a motion for summary judgment should be dealt with

cautiously.” Id. (brackets omitted) (quoting Cruz v. Daimler-Chrysler Motors Corp.,

66 A.3d 446, 451 (R.I. 2013)).

“This Court considers questions involving the timing of appeals brought under

§ 33-23-1 as statute of limitations questions.” Estate of Hart v. LeBlanc, 853 A.2d

1217, 1218 (R.I. 2004). Thus, our review is also de novo for such questions of

“statutory interpretation, including the question of whether a statute of limitations

has run against a plaintiff’s claim.” Kelley v. Jepson, 811 A.2d 119, 121 (R.I. 2002).

“When a statute is ‘clear and unambiguous, this Court must interpret the statute

literally and must give the words of the statute their plain and ordinary meanings.’”

In re Estate of Chelo, 209 A.3d 1181, 1184 (R.I. 2019) (quoting Accent Store Design,

Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I. 1996)).

Discussion

On appeal, appellant alleges that the Superior Court justice committed

reversible error by granting summary judgment, asserting that she did comply with

the statutory requirements of § 33-23-1 to perfect her probate appeal.

Filing “a timely claim of appeal” is “a step which this Court has described as

the ‘all-important condition precedent for the taking of an effective appeal.’” Ims v.

Audette, 40 A.3d 236, 239 (R.I. 2012) (second quote quoting Jolicoeur Furniture

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Co. v. Baldelli, 653 A.2d 740, 748 (R.I. 1995)); see Joseph R. Weisberger, Rhode

Island Appellate Practice, commentary 4.1 at 19 (1993). Section 33-23-1, titled

“Filing of claim of appeal, record, and reasons,” reads, in pertinent part:

“(a) Any person aggrieved by an order or decree of a
probate court (hereinafter ‘appellant’), may, unless
provisions be made to the contrary, appeal to the
[S]uperior [C]ourt for the county in which the probate
court is established by taking the following procedure:

“(1) Within twenty (20) days after execution of the order
or decree by the probate judge, the appellant shall file, in
the office of the clerk of the probate court, a claim of
appeal to the [S]uperior [C]ourt and a request for a
certified copy of the claim and shall pay the clerk his or
her fees therefor.

“(2) Within thirty (30) days after the entry of the order or
decree, the appellant shall file, in the [S]uperior [C]ourt, a
certified copy of the claim and the reasons of appeal
specifically stated, to which reasons the appellant shall be
restricted, unless, for cause shown, and with or without
terms, the [S]uperior [C]ourt shall allow amendments and
additions thereto.

“* * *

“(c) The deadline of subdivisions (a)(1) and (a)(2) are
jurisdictional and may not be extended by either the
probate court or the [S]uperior [C]ourt.” (Emphasis
added.)

As the hearing justice pointed out, the procedural requirements of § 33-23-1(a)(1)

require three things from an aggrieved party seeking to appeal an order or decree of

the probate court: the appellant must, within 20 days of the decree, (1) file their claim

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of appeal to the Superior Court in the office of the clerk of the probate court, (2) file

a request for a certified copy of their claim, and (3) pay the relevant fees.

This Court has long interpreted the procedural requirements for filing a

probate appeal as mandating strict compliance. See Dugdale v. Chase, 52 R.I. 63,

64, 157 A. 430, 430-31 (1931) (holding that, because the “probate court has

exclusive original jurisdiction in matters relating to the probating of wills[,]” the

“statutory procedure authorizing an appeal from the probate court to the [S]uperior

[C]ourt must be strictly complied with”). “Because these provisions deprive the

Superior Court of the authority to exercise its jurisdiction, they ‘may not be extended

by a sympathetic trial justice,’ and the Superior Court may not overlook an

appellant’s failure to comply.” Ims, 40 A.3d at 238 (quoting Griggs v. Estate of

Griggs, 845 A.2d 1006, 1009 (R.I. 2004)). This Court has stated that “[t]he purpose

of requiring a party to file the reasons of appeal is, first, to provide notice to the

opposing party of what is at issue, and second, to restrict the appellant during his or

her appeal to only the issues listed within the reasons for appeal.” Mendes v. Factor,

41 A.3d 994, 1002 (R.I. 2012).

As an initial matter, it is undisputed that appellant filed her claim of appeal in

the probate court within the twenty-day statutory window. See § 33-23-1(a)(1); see

also Walquist v. Hodson, 53 R.I. 322, 323, 166 A. 546, 547 (1933) (“The decree is

entered on the day it is made by the probate court, and the time for claiming an

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appeal therefrom is computed from that date.”). Additionally, because the

differences between the two claims filed were de minimis, amounting to the

elimination of surplus verbiage that was neither substantive nor material, there is no

question that either of appellant’s two filed claims was “sufficient to provide notice

and to confine the appeal to those enumerated issues” identically stated in both.

Mendes, 41 A.3d at 1003. It is also undisputed that a certified copy of the second

claim was filed in the Superior Court within the thirty-day time limitation of

§ 33-23-1(a)(2).

The only remaining issues in dispute as to the perfection of appellant’s appeal

relate to the timeliness of her request for a certified copy of her claim and her

payment of the relevant fees. Because our review here is de novo, we examine the

evidence in the record regarding both of these remaining issues in turn. See In re

Estate of Chelo, 209 A.3d at 1184; 5 C.J.S. Appeal and Error § 905 (Mar. 2021

Update) (“When a standard of de novo review on appeal is applied, the court’s

review is plenary and independent, with no deference to the trial court, looking to

the issue with fresh eyes and considering the matter anew.”) (footnotes omitted).

Request for a Certified Copy

The appellant argues that she requested a certified copy of her claim of appeal

or, in the alternative, that there is a genuine issue of material fact as to whether she

did, based upon the competing affidavits of appellant and Ms. St. Jean.

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 In Ims, cited supra, we clarified our holding in Lett v. Giuliano, 35 A.3d 870

(R.I. 2012), 3 stating that it did not establish “a good-faith defense to the jurisdictional

prerequisites” of § 33-23-1 generally. Ims, 40 A.3d at 238. In doing so, we pointed

out that, “[i]n Lett, there was no dispute that the appeal properly had been claimed

and the record transmitted[,]” and reiterated that “the appealing party in Lett had

submitted the relevant documents within the requisite time frame[.]” Id. at 238, 239.

This is also true in the instant matter.

The hearing justice, in granting appellee’s motion for summary judgment,

based her decision almost entirely on the absence of evidence that appellant had

submitted a timely request for certification of her claim. Yet, each Claim of Appeal

form submitted to the Superior Court as evidence very clearly states, on its face, that

the undersigned claimant “request[s] a certified copy of said claim[.]”

In vacating the Superior Court’s denial of relief under G.L. 1956 § 9-21-6 in

Duffy v. Estate of Scire, 111 A.3d 358 (R.I. 2015), this Court found that where

“plaintiffs’ counsel made a clear and explicit request for a copy of the record[,] no

reasonable person need have done more[.]” Duffy, 111 A.3d at 367. Here, as in

Kelley, cited supra, appellant “complied with the twenty-day requirement of

3
Our holding in Lett v. Giuliano, 35 A.3d 870 (R.I. 2012), was based on the Court’s
prior “clear pronouncement that failure to submit a single transcript as part of a
larger probate record should ‘rarely if ever’ be cause for dismissal when a party has
made good faith efforts to comply with § 33-23-1[.]” Lett, 35 A.3d at 876 (emphasis
added) (citing Estate of Hart, 853 A.2d 1217, 1219 n.1 (R.I. 2004)).

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§ 33-23-1(a)(1)” when she not only “filed with the Probate Court [her] claim of

appeal to the Superior Court[,]” but “also requested a certified copy of the claim[.]”

Kelley, 811 A.2d at 122. Our review of the admissible evidence, viewed in the light

most favorable to appellant, reveals that summary judgment was not justified as to

appellant’s request for a certified copy of her claim, as there was competent evidence

before the Superior Court proving the existence of a disputed issue of material fact.

See Glassie, 157 A.3d at 1096; Bettez v. Bettez, 114 A.3d 82, 85 (R.I. 2015).

Payment of Fees

The appellant also contends that she paid all fees requested by the probate

court clerk’s office in filing and requesting a certified copy of her claim of appeal.

Unlike the defendant in Ims, the appellant in the case at bar did not completely

fail to pay the requisite filing fees for appealing a decision of the probate court.4 See

Ims, 40 A.3d at 239. While there are no fees to file the claim of appeal itself, the

probate court does charge fees for certified copies. However, the record shows that

either appellant or her agent paid fees for certified copies of both claims.

Furthermore, unlike the plaintiffs in Duffy, a case that also dealt with the question of

4
General Laws 1956 §§ 33-23-1(i) and (j), relied on in Ims v. Audette, 40 A.3d 236
(R.I. 2012), established mandatory fees to be paid by an appealing party and stated
that probate court clerks were not required “to make arrangements for or advance
the costs” of producing a transcript. Ims, 40 A.3d at 239. These sections were
eliminated from the statute in 2014. See P.L. 2014, ch. 314, § 1.

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untimely payment of probate fees, appellant’s ultimate filing of her reasons of appeal

in the Superior Court was timely. See Duffy, 111 A.3d at 361-63.

Here, there is no question that some fees requested by the probate court clerk

were paid by appellant within the twenty-day period contemplated by

§ 33-23-1(a)(1). The appellant submitted a receipt dated September 26, 2017, for

$1.50, and an affidavit that stated she also gave the clerk’s office a $10 bill.

However, the hearing justice found that there was no evidence that appellant paid

for a certified copy of the second claim of appeal, which the hearing justice deemed

the operative claim, within the twenty-day statutory time frame.

As a general matter, it is true that amended pleadings in the Superior Court

supersede any earlier pleadings, which are then disregarded as inoperative. See

Grieco v. Perry, 697 A.2d 1108, 1110 (R.I. 1997) (holding that an “original

complaint is superseded at the time of the filing of the amended complaint”). Yet,

as mentioned supra, the two claims of appeal filed by the appellant with the probate

court were virtually identical, and the eliminated language amounted to mere

surplusage. See Brown v. Church of Holy Name of Jesus, 105 R.I. 322, 326, 252

A.2d 176, 179 (1969) (stating that “any matter pleaded which, if stricken, would

leave a good pleading before the court * * * may be disregarded”). The record shows

that the appellant has claimed that she paid sufficient fees for a certified copy of the

first claim of appeal and that the probate court clerk has indicated in her affidavit

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that, when a certified copy is requested, it is the practice of the clerk’s office to issue

that copy the same day. Consequently, we hold that the appellant perfected her

probate appeal, and we therefore reverse the decision of the Superior Court granting

summary judgment in favor of the appellee.

Conclusion

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

denying and dismissing the appellant’s probate appeal. The papers may be

remanded to the Superior Court.

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 Estate of John P. Garan.

No. 2019-406-Appeal.
Case Number
(PP 17-4786)

Date Opinion Filed May 10, 2021

Justices Suttell, C.J., Goldberg, Robinson, and Lynch Prata, JJ.

Written By Associate Justice Erin Lynch Prata

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Melissa A. Darigan

For Plaintiff:

Brittanee Nicole Bland, Esq.
Charles N. Redihan, Jr., Esq.
Attorney(s) on Appeal
For Defendant:

Bernard A. Jackvony, Esq.
Rebecca M. Murphy, Esq.

SU‐CMS‐02A (revised June 2020)