Marcia Sallum Glassie v. Paul Doucette, in his capacity as of the Estate of Donelson C. Glassie

Supreme Court

No. 2023-163-Appeal.
(NP 19-213)

Marcia Sallum Glassie :

v. :

Paul Doucette, in his capacity as :
Executor of the Estate of Donelson
C. Glassie.

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
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made before the opinion is published.
Supreme Court

No. 2023-163-Appeal.
(NP 19-213)

Marcia Sallum Glassie :

v. :

Paul Doucette, in his capacity as :
Executor of the Estate of Donelson
C. Glassie.

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

OPINION

Chief Justice Suttell, for the Court. This appeal concerns a dispute over the

will of the late Donelson C. Glassie (the testator). The plaintiff, Marcia Sallum

Glassie, is the testator’s former wife. She appeals from a Superior Court judgment

in favor of the defendant, Paul Doucette, in his capacity as Executor of the Estate of

Donelson C. Glassie. The Superior Court affirmed an order of the Newport Probate

Court denying the plaintiff’s petition for leave to file a claim out of time against the

estate. The denied claim would have alleged a breach of contract, based on the

plaintiff’s contention that a key provision of the testator’s will violated the terms of

the couple’s property-settlement agreement. After reviewing the record and

considering the parties’ written and oral arguments, we affirm the judgment of the

Superior Court.

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I

Facts and Travel

The plaintiff and the testator were married in 1986, had three children, and

were divorced in 1993. Glassie v. Doucette, 159 A.3d 88, 91 (R.I. 2017) (Glassie I).

According to their property-settlement agreement (PSA), the testator was to execute

a will that would not only treat his obligations under the PSA as “a claim against any

assets in [his] [e]state” but also “specifically bequest to [plaintiff] an amount equal

to said obligations.” The PSA further provided that “[t]he obligation of [the testator]

to maintain said assets and to bequest said sum to [plaintiff] shall be subject to

modification by the Family Court from time-to-time as the obligations of [the

testator] diminish under [the PSA].”

A dispute soon unfolded over what the PSA required of the testator’s will. In

1997, a Family Court justice determined that plaintiff was “entitled under the

language of the [PSA] to the bequest of a sum certain equal to [the testator’s]

obligations.” That sum was a “fixed figure,” the hearing justice explained, and one

that would “continue unless” the testator petitioned the Family Court for

modifications consistent with any changes to his obligations. Following the decision

of the Family Court, the testator executed a will that he soon amended with a codicil,

which provided, in relevant part, that he would “give, devise and bequeath to

[plaintiff] * * * the sum of $2,000,000.00, or such other amount as shall be then

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required to fully satisfy all of [his] remaining obligations and responsibilities” under

the PSA. According to a stipulation filed in Family Court, plaintiff found this

language “to be in full compliance with the” relevant provision of the PSA, and, in

1999, the testator executed a new will incorporating the language of the codicil in

full.

Not once before his death on February 3, 2011, did the testator return to

Family Court and seek modifications to the bequest in his will. Glassie I, 159 A.3d

at 92. On May 3, 2012, plaintiff filed a $2,000,000 claim against the testator’s estate

in the Newport Probate Court, which defendant disallowed the following week, on

May 11, 2012. See id. The dispute then made its way to Superior Court, and, in

2015, plaintiff was awarded $2,000,000, less the proceeds of a life insurance policy

that she received upon the testator’s death, as well as attorneys’ fees. Id. at 92-93.

In 2017, this Court vacated the Superior Court judgment on multiple grounds.

Glassie I, 159 A.3d at 95-98. Relevant to the present appeal, we determined “that

the disputed provision in the will is ambiguous” because it “does not clearly specify

under what circumstances plaintiff is to receive the sum of $2,000,000 or the

circumstances under which she is to receive such other amount necessary to satisfy

all of [the testator’s] remaining obligations.” Id. at 94-95. Because “a proper

resolution of this matter require[d] factfinding and conclusions of law with respect

to [the] testator’s intent,” we remanded the case to the Superior Court. Id. at 95.

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Back in Superior Court, plaintiff sought to amend her complaint with a claim

for breach of contract. At this stage, she framed her claim as prospective, if not

conditional, in nature. If the ambiguous provision were ultimately construed in a

manner that, in plaintiff’s opinion, was “at odds with [the testator’s] obligations

under the PSA,” then the testator’s conduct, in drafting that provision, “would

amount to a breach of his obligations under the PSA to ensure the bequest to

[plaintiff].” In other words, if the provision were construed in defendant’s favor,

plaintiff would have a claim for breach of contract; but if instead the provision were

construed in plaintiff’s favor, there would be no such claim.

The Superior Court denied plaintiff’s motion to amend her complaint, in part

because she did not first submit the claim to the probate court, and also because the

applicable statute of limitations had expired. The plaintiff thereafter filed a petition

in the Newport Probate Court for leave to file a claim out of time and, after the court

denied her petition, she appealed that denial to the Superior Court.

On March 9, 2020, the Superior Court held a bench trial on plaintiff’s appeal

from the denial of her petition to file a late claim for breach of contract. The plaintiff

refined the basic contours of her argument at trial. To begin, she noted that, in 2017,

this Court held that the disputed will provision is ambiguous and remanded the

matter to the Superior Court for “factfinding and conclusions of law with respect to

[the] testator’s intent.” Glassie I, 159 A.3d at 95. This created some “uncertainty,”

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plaintiff explained, because if the factfinder determined that the testator intended not

to grant plaintiff a “specific monetary bequest * * * subject to modification [only]

by the Family Court or by agreement of the parties,” then, in acting upon this intent,

the testator violated his obligations under the PSA. The contract claim was therefore

conditional; indeed, it would not ripen unless the factfinder determined that “the will

mean[t] something noncompliant with the PSA.”

The plaintiff’s statements at trial shed further light on her claim for breach of

contract. For one, plaintiff testified that, although she had objected to earlier

versions of the testator’s will, the two had stipulated that the 1998 will and codicil

were “in full compliance” with the PSA. She also indicated that she was not aware

until after his death that the testator executed a new will in 1999; this wrinkle,

however, did not inform her breach-of-contract claim.

A significant issue at trial, and one critical to the eventual Superior Court

decision, was plaintiff’s contemporaneous understanding of defendant’s reason for

disallowing her 2012 claim against the estate for $2,000,000. On cross-examination,

defense counsel questioned plaintiff about the timing of her claim for breach of

contract. After establishing that she did not make her contract claim “until after”

this Court’s 2017 decision about the disputed will provision, defense counsel asked

plaintiff whether she decided to make this claim “because the Supreme Court said

that the” provision was ambiguous. “That’s correct,” plaintiff said.

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Next, over the objection of plaintiff’s counsel, defense counsel asked plaintiff

whether she would characterize an “ambiguous” document as one “that’s capable of

being read in more than one way[.]” “Sure,” she said. Defense counsel thereafter

initiated the following exchange:

“[DEFENSE COUNSEL]: * * * Did you make a request
of [defendant] to pay you two million dollars based on the
way you read the will?

“[PLAINTIFF]: We made a claim, yes.

“[DEFENSE COUNSEL]: And * * * you understood that
[defendant] responded by denying your claim because
that’s not the way he read the will, correct?

“[PLAINTIFF]: Correct.

“[DEFENSE COUNSEL]: So you knew in 2012 that there
were two different ways of reading the will, your way and
the way [defendant] read it; correct?

“[PLAINTIFF]: And then in 2015, [the trial justice] read
it the way I read it.

“[DEFENSE COUNSEL]: But just focusing back again on
my question. You knew in 2012 that [defendant] read the
will in a different way from the way you read the will,
correct?

“[PLAINTIFF]: I’m not sure about that. He denied the
claim but I’m not sure what reasons he used at the time. I
really can’t say.”

Defense counsel returned to this line of questioning after addressing another matter:

“[DEFENSE COUNSEL]: And then it came to pass that
you made a claim under your interpretation of the will and

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[defendant] denied it. At that point you were aware that
[he] disagreed with the way you read the will, correct?

“* * *

“[PLAINTIFF]: I don’t know why he denied it, actually.

“[DEFENSE COUNSEL]: When did you first learn why
he denied it?

“[PLAINTIFF]: I don’t really remember, sometime in
2012, 2013. I don’t know.

“[DEFENSE COUNSEL]: But sometime in 2012 or ’13
you learned that he had denied it because he disagreed
with the way you interpreted the will?

“[PLAINTIFF’S COUNSEL]: Objection, your Honor.
Speculation.

“THE COURT: Overruled. I think that’s what she said.

“[PLAINTIFF]: I don’t know why he denied it because the
only -- because my understanding was that the only
method to change the amount in the will, the amount of the
bequest, was if [the testator] had returned to court while
he was alive to petition the [c]ourt to change the amount.
* * * I don’t know why he denied it.

“[DEFENSE COUNSEL]: Well, I thought you had said
that you learned in 2012 or 2013 why he denied it, was that
a misstatement on your part?

“[PLAINTIFF]: Yes.”

A similar line of questioning occurred with respect to litigation between the parties

in 2015, which culminated in the Superior Court judgment that this Court vacated

and remanded in 2017. See Glassie I, 159 A.3d at 91. In that exchange, defense

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counsel asked whether plaintiff had read one of defendant’s filings in that litigation,

to wit, a memorandum in support of summary judgment, at the time that it was filed.

She responded that she had; defense counsel then asked, over another objection of

plaintiff’s counsel, whether plaintiff was “aware when [she] read the memorandum

in 2015 that [defendant] had a different interpretation of” the will provision. “Well,

yes,” she said, “otherwise we wouldn’t be here.” Defense counsel continued, once

again over the objection of plaintiff’s counsel: “[S]o as of that time, at the very latest,

you knew that there were two different interpretations of the will, * * * correct?” To

this question, plaintiff responded in the affirmative, but she would not further affirm

defense counsel’s suggestion that “[she] knew then that the will was ambiguous[.]”

(Later, on redirect examination, plaintiff’s counsel asked whether she agreed that

“the fact that one person takes a position with respect to what a document means

doesn’t mean that [the position] is reasonable * * *.” Before plaintiff could answer,

however, the trial justice said that he “d[id]n’t know if her opinion on that [would]

make a difference in [his] opinion, especially in this case,” and plaintiff’s counsel

withdrew the question.)

A third line of questioning concerned the nearly two-year lapse between this

Court’s 2017 decision, discussed above, and plaintiff’s attempt to make a claim for

breach of contract. The plaintiff noted that she and defendant were in mediation for

some of that time. She further acknowledged that, although “[she] knew in * * *

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2017 all of the facts that” formed the basis of her contract claim, she did not bring

the claim until after “the mediation fail[ed].”

In a written decision filed on September 2, 2020, the trial justice affirmed the

probate court and denied plaintiff’s petition to bring a claim for breach of contract.

To begin his analysis, the trial justice explained that plaintiff’s petition was governed

by G.L. 1956 § 33-11-5(b), which provides an exception to the general rule, codified

at § 33-11-5(a), that claims against a decedent’s estate are “forever barred” unless

“presented within six (6) months from the first publication” of the estate. According

to § 33-11-5(b):

“A creditor who, by reason of accident, mistake, excusable
neglect or lack of adequate notice of decedent’s estate,
failed to present a claim within six (6) months from the
first publication, may before distribution of the estate,
petition the probate court for leave to present a claim out
of time.”

Applying this standard, the trial justice found that plaintiff’s failure to bring her

contract claim within six months of the publication of the testator’s estate was not

due to excusable neglect and thus her claim was forever barred. Central to his

finding was plaintiff’s concession “that she knew in 2012,” some seven years before

seeking to amend her complaint, that she and defendant held conflicting

interpretations of the disputed will provision; specifically, “that [defendant] read the

* * * provision differently than she did.” The trial justice further characterized this

conflict as the “central issue” in the parties’ 2015 litigation, during which, the trial

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justice noted, defendant had presented arguments that assumed the provision to be

ambiguous. According to the trial justice, plaintiff’s participation in the 2015

litigation, not to mention the disallowance of her 2012 claim against the estate,

“should have alerted her of the potential alleged breach of contract claim.” Applying

well-established caselaw on the excusable-neglect standard, the trial justice

determined that plaintiff, in waiting seven years to file her breach-of-contract claim,

“failed to act as a reasonably prudent person” and therefore could not meet the

requirements of § 33-11-5(b). See Duffy v. Estate of Scire, 111 A.3d 358, 366 (R.I.

2015).

Following this decision, plaintiff filed a motion under Rule 52(b) of the

Superior Court Rules of Civil Procedure, which enables movants to request that a

court amend its findings, make additional findings, or amend the judgment within

ten days after judgment enters. According to plaintiff, her claim for breach of

contract did not accrue (indeed, did not exist) until after the six-month period

delineated in § 33-11-5(a) had passed, and so the trial justice erred by applying that

statute to her claim. Instead, plaintiff argued, the general ten-year statute of

limitations, codified at G.L. 1956 § 9-1-13(a), governed her claim, and thus her

claim had not yet expired in 2019 when she filed her petition in probate court. After

hearing the issue on November 18, 2020, the trial justice denied plaintiff’s Rule

52(b) motion the following month. The Superior Court entered judgment in favor

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of defendant on August 23, 2022, and plaintiff filed a timely notice of appeal on

September 9, 2022.

II

Standard of Review

“It is well established that a probate appeal to the Superior Court is de novo

in nature.” Smile of the Child v. Estate of Papadopouli, 272 A.3d 99, 105 (R.I. 2022)

(quoting Larkin v. Arthurs, 210 A.3d 1184, 1190 (R.I. 2019)). “On our appellate

review, however, ‘the factual findings of a trial justice sitting without a jury are

accorded great weight and will not be disturbed unless the record shows that the

findings clearly are wrong or the trial justice overlooked or misconceived material

evidence.’” Id. at 106 (quoting Larkin, 210 A.3d at 1190). “If, in our review of the

record, it becomes clear to us that the record indicates that competent evidence

supports the trial justice’s findings, we shall not substitute our view of the evidence

for that of the trial justice even though a contrary conclusion could have been

reached.” Id. (quoting Larkin, 210 A.3d at 1190).

III

Discussion

The plaintiff makes two arguments on appeal. First, she argues that the

Superior Court incorrectly found that her claim for breach of contract accrued in

2012, when defendant disallowed her claim against the testator’s estate. Second, she

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contends that § 33-11-5 does not govern her claim and that the Superior Court erred

in applying that statute’s six-month limitations period instead of the ten-year period

codified at § 9-1-13(a).

The trial justice determined, based on defense counsel’s cross-examination of

plaintiff during the March 9, 2020 bench trial, that plaintiff “knew in 2012” that she

and defendant held conflicting interpretations of the disputed will provision. That

determination is a “factual finding[] of a trial justice sitting without a jury” and is

thus “accorded great weight” on this Court’s appellate review. Smile of the Child,

272 A.3d at 106. Therefore, even if plaintiff arguably did not concede at trial that

she knew in 2012 that defendant read the will provision differently than she did, or

even if she did concede and thereafter retracted her concession, neither view of the

evidence will supersede that of the trial justice unless the latter is not supported by

competent evidence. Id. In any event, plaintiff does not challenge this finding on

appeal, and she appears to concede in her brief that she learned “that [defendant]

held a different reading of [the provision] when her claim was” disallowed in 2012.

This Court will therefore proceed as if plaintiff knew in 2012 that she and defendant

held conflicting interpretations of the disputed will provision.

The plaintiff’s first argument on appeal concerns the accrual date of her claim

for breach of contract. According to plaintiff, the trial justice incorrectly found that

the claim accrued in 2012, when it “accrued, at the earliest, in 2017,” after this Court

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held the will provision ambiguous and remanded the matter to the Superior Court.

See Glassie I, 159 A.3d at 95. It was our decision in Glassie I, plaintiff contends,

that, “for the first time, created the possibility” that a factfinder would construe the

provision in a manner “inconsistent with [the testator’s] contractual obligations

under the PSA.” Only then, plaintiff explains, did she “learn[] that the * * *

language” of the will provision “might not satisfy [the testator’s] contractual

obligations.”

In our opinion, however, this “possibility” arose at least five years earlier, in

2012, when defendant disallowed plaintiff’s $2,000,000 claim against the estate

based—as she concedes then to have known—on his conflicting interpretation of the

will provision. As soon as this happened, plaintiff reasonably should have known

there was a possibility, however remote in her view, that a factfinder would construe

the provision against what she asserts to be the testator’s obligations under the PSA.

The plaintiff, however, waited another seven years before filing her claim for breach

of contract, and the trial justice found that it was not excusable neglect for her to do

so. Because the existence of excusable neglect is a question of fact, we accord that

finding great weight; and, at any rate, we see no reason to reach a contrary

conclusion. See Rivera v. Rose, 14 A.3d 939, 945 (R.I. 2011); Smile of the Child,

272 A.3d at 106.

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We now turn to plaintiff’s second argument on appeal, which concerns the

applicability of § 33-11-5(b) to her claim for breach of contract. Section 33-11-5(b)

creates an exception to § 33-11-5(a), which bars claims against a decedent’s estate

that are not “presented within six (6) months from the first publication” of the estate.

If a creditor “fail[s] to present a claim” within that six-month period “by reason of

accident, mistake, excusable neglect or lack of adequate notice of decedent’s estate,”

§ 33-11-5(b) permits the creditor, “before distribution of the estate,” to petition “for

leave to present a claim out of time.” The plaintiff argues that subsection (b)—

indeed, the entire statute—is inapplicable because the trial justice determined that

her “claim did not accrue until May 11, 2012,” which, she observes, was more than

six months after the first publication of the estate. She further contends that

subsection (b) applies only to claims that could have been presented within the six-

month period required under subsection (a) but, for one of four stated reasons,

including excusable neglect, were not presented in time. According to plaintiff,

however, her claim for breach of contract “simply did not exist” before the expiration

of that six-month period, thus making the statute inapposite to her claim. For that

reason alone, plaintiff argues that her claim should be subject instead to the general

ten-year statute of limitations codified at § 9-1-13(a).

The defendant may have denied plaintiff’s $2,000,000 claim against the estate

more than six months after first publication, but that does not mean that § 33-11-5 is

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inapposite to her contract claim. Had plaintiff sought to file the latter claim as soon

as the former was denied, perhaps there would have been a finding of excusable

neglect. The question before the trial justice, however, was whether it was excusable

neglect for plaintiff to file her claim, not in 2012, but in 2019. On this question, the

trial justice determined that plaintiff “knew in 2012” that defendant disallowed her

$2,000,000 claim against the estate based on defendant’s conflicting interpretation

of the will provision at issue, which should have alerted her to a potential claim for

breach of contract. Because a “reasonably prudent person * * * under similar

circumstances” would not have waited another seven years before seeking to bring

such a claim, he next found that plaintiff’s delay was not the result of excusable

neglect. (Quoting Duffy, 111 A.3d at 366.) Accordingly, the trial justice concluded

that plaintiff was not entitled to an extension under § 33-11-5(b) and thus affirmed

the denial of her petition to file a claim out of time.

Based on our review of the record, we see no reason to disturb these factual

findings of the trial justice. The plaintiff concedes that she knew in 2012 that the

defendant disallowed her $2,000,000 claim against the estate because he read the

will provision at issue differently than she did. If that is true, then the plaintiff was

aware in 2012 of the facts that underlie her breach-of-contract claim. That claim

alleges that the testator, the plaintiff’s former husband, violated his obligations under

the PSA because the language of his will falls short of what, in the plaintiff’s view,

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the terms of the PSA require. Although the plaintiff should have been aware of her

potential claim in 2012, she did not seek to amend her complaint until 2019. This

was some four years after the parties litigated a dispute, in Superior Court, over the

meaning of the will provision, not to mention almost two years after this Court issued

the decision that, according to the plaintiff, first provided notice of her claim. In

short, we agree with the trial justice that the plaintiff’s failure to timely present her

claim for breach of contract was not due to excusable neglect and, therefore, her

claim must be denied.

IV

Conclusion

For the foregoing reasons, the judgment of the Superior Court is affirmed.

The papers in this case may be remanded to the Superior Court.

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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

Marcia Sallum Glassie v. Paul Doucette, in his
Title of Case capacity as Executor of the Estate of Donelson C.
Glassie.
No. 2023-163-Appeal.
Case Number
(NP 19-213)

Date Opinion Filed June 27, 2024

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

Written By Chief Justice Paul A. Suttell

Source of Appeal Kent County Superior Court

Judicial Officer from Lower Court Associate Justice Brian Van Couyghen

For Plaintiff:

Jeffrey K. Techentin, Esq.
Attorney(s) on Appeal
For Defendant:

Daniel R. Prentiss, Esq.

SU-CMS-02A (revised November 2022)