Ambrose C. Mendes, Jr. v. Kirshenbaum & Kirshenbaum Attorneys at Law, Inc.

Supreme Court

No. 2023-89-Appeal.
(PP 09-1820)

Ambrose C. Mendes, Jr., et al. :

v. :

Kirshenbaum & Kirshenbaum Attorneys :
at Law, Inc.

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. 2023-89-Appeal.
(PP 09-1820)

Ambrose C. Mendes, Jr., et al. :

v. :

Kirshenbaum & Kirshenbaum Attorneys :
at Law, Inc.

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

OPINION

Justice Long, for the Court. The plaintiff, Ambrose C. Mendes, Jr. (plaintiff

or Mr. Mendes), a self-represented litigant,1 challenges an order and judgment of the

Superior Court that approved two Providence Probate Court accountings and closed

the estate of his late father, Ambrose Mendes, Sr., as well as a subsequent order that

granted opposing counsel’s motion for attorneys’ fees.2 Mr. Mendes argues that the

trial justice improperly denied him his right to a jury trial. For the reasons set forth

1
Mr. Mendes employed the services of someone who identified themselves as a
ghostwriter in preparing his legal memoranda. This Court acknowledges that the
practice of ghostwriting may increase self-represented litigants’ access to justice, but
we limit our approval of this practice to attorneys licensed in the state of Rhode
Island. FIA Card Services, N.A. v. Pichette, 116 A.3d 770, 783-84 (R.I. 2015). Self-
represented litigants must familiarize themselves with the law as well as the rules of
procedure. Costantino v. Ford Motor Company, 178 A.3d 310, 312 (R.I. 2018).
2
The order awarding attorneys’ fees entered on April 6, 2023; Mr. Mendes’s notice
of appeal was docketed before this Court on March 20, 2023.
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in this opinion, we affirm the order and judgment of the Superior Court approving

the accountings and closing the estate but vacate the post-docketing order awarding

attorneys’ fees.

Facts and Procedural History

This appeal arises from more than a decade of litigation concerning the

administration of Mr. Mendes’s father’s estate and his longstanding dispute with

defendant, Kirshenbaum & Kirshenbaum Attorneys at Law, Inc. (defendant). The

factual background of this matter can be found in our prior decision, Mendes v.

Factor, 41 A.3d 994 (R.I. 2012); we limit our factual recitation in this matter

accordingly. See Mendes, 41 A.3d at 996-1000. Mr. Mendes also named Alfred

Factor as a defendant in this matter, but Mr. Factor died following remand of this

case and is therefore no longer a party. We emphasize the length of time since the

inception of this matter, as well as the emotional toll that this dispute has taken on

the individuals involved: The decedent died on September 30, 1976, and Mr.

Mendes continues to contest matters that the Providence Probate Court addressed in

a March 3, 2009 consent order. Id. at 997, 998.

Following our 2012 remand of this case to Superior Court, and after a

contested hearing, on February 19, 2021, a justice of the Superior Court entered an

order assigning this matter to the jury trial calendar. Almost two years later, on

January 17, 2023, this case was reached for trial on the challenge to the Providence

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Probate Court’s approval of two accountings filed in 2008. On the first day of trial,

and over Mr. Mendes’s objection, a second trial justice decided sua sponte not to

seat a jury and instead proceeded with a bench trial.

The following day, on January 18, 2023, the trial justice encouraged the

parties either to settle this matter or to mediate it and offered to assist in reaching a

resolution in an alternative manner. Specifically, the following exchange took place

after the trial justice asked Mr. Mendes about his willingness to settle or mediate this

matter:

“MR. AMBROSE MENDES: At this point, Your Honor,
anything will help. I mean, we’re just trying to come to
some kind of conclusion about our losses and why we’re
here.

“* * *

“THE COURT: But if you’re willing to mediate and work
with --

“MR. AMBROSE MENDES: I’m willing to listen. I’m
willing to mediate, you know, but I’m not, you know, I’m
not going to accept like 20, 30,000. That is an insult to us.
Offering us some menial figure like that is insulting.
Because it’s, you know, compared to what we’ve lost.”

After a brief recess, the parties reappeared on the record; disclosed that they had

settled; and noted both the terms of the settlement and their acceptability to each

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litigant.3 After defendant’s counsel read the terms of the settlement into the record,

the following exchange took place between counsel for defendant; the trial justice;

and Mr. Mendes and his family:

“[DEFENDANT’S COUNSEL]: So I would ask the Court
if you could ask the parties involved if they understand
that that’s essentially what the [settlement] release is going
to include before I go to the next phase.

“THE COURT: Is all that okay with you, Mr. Mendes?

“MR. AMBROSE MENDES: Yes.

“THE COURT: Ms. [Madonna] Mendes, is that okay?

“MS. [MADONNA] MENDES: Yes.”

After receiving confirmation from both Mr. Mendes and his sister, Madonna

Mendes, the trial justice attempted to confirm the terms of the settlement with Victor

Mendes, Jr., plaintiff’s late brother’s son, who participated in the discussion via

telephone. However, because Victor Mendes, Jr. failed to hear the settlement terms

over the telephone, defendant’s counsel reread the terms on the record a second time;

3
Mr. Mendes originally brought this action along with his siblings, Madonna
Mendes and Victor Mendes. In Mendes v. Factor, 41 A.3d 994 (R.I. 2012), this
Court affirmed a judgment dismissing Mr. Mendes’s siblings’ probate appeals and
claims. See Mendes, 41 A.3d at 1006. In 2016, Victor and Madonna were permitted
to intervene in this case. However, Mr. Mendes’s family members chose not to
pursue this matter on appeal. Additionally, during oral argument before this Court,
Mr. Mendes suggested that he had the authority to represent his family members.
However, this Court permits self-represented litigants to advocate only on behalf of
themselves. See Willner v. South County Hospital, 222 A.3d 1251, 1256 (R.I. 2020).
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the trial justice ultimately received Victor Mendes, Jr.’s affirmative consent to the

settlement terms. Mr. Mendes did not object to the settlement terms at any point

during this proceeding.

Notwithstanding the on-the-record agreement and the entry of an order

accepting the two accountings and closing the decedent’s estate the following day,

Mr. Mendes changed his mind. Specifically, Mr. Mendes asserts that the day after

the parties settled in court before the trial justice, he reconsidered his decision,

refused to sign any further documentation memorializing the settlement agreement,

and instead filed a notice of appeal on February 3, 2023. However, the trial justice

subsequently dismissed the notice of appeal, on defendant’s motion to strike, based

on Mr. Mendes’s failure to comply with Article I, Rule 10 of the Supreme Court

Rules of Appellate Procedure.

Following entry of the trial justice’s order dismissing the appeal, Mr. Mendes

filed a second, duplicative notice of appeal on March 8, 2023, that is now before us

based on the Superior Court’s September 29, 2023 entry of final judgment approving

the accountings and closing the estate.4 This Court docketed Mr. Mendes’s appeal

on March 20, 2023, but on March 27, 2023, the trial justice heard and granted

4
This Court remanded the case for entry of final judgment by order dated
September 21, 2023. We reject counsel for defendant’s assertion at oral argument
that this appeal constitutes a nullity.
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defendant’s motion for attorneys’ fees, based on Mr. Mendes’s decision to contest

the in-court settlement agreement.

We consider whether Mr. Mendes has foreclosed his right to pursue the instant

appeal based on his on-the-record agreement with defendant before the trial justice

on January 18, 2023, and whether the trial justice properly granted defendant’s

motion for attorneys’ fees.

The January 18, 2023 Agreement

Mr. Mendes asks this Court to review the trial justice’s determination that he

lacked the right to a jury trial and contests the trial justice’s acceptance of the two

Providence Probate Court accountings and the closing of the estate. However, prior

to evaluating the merits of any challenge to the proceedings below, we must

determine whether plaintiff’s in-court settlement forestalls such review.

We do not permit litigants to avoid their agreed-upon obligations solely

because a party later decides that the agreement no longer serves as the ideal

resolution of their dispute. Ballard v. SVF Foundation, 181 A.3d 27, 40 (R.I. 2018).

Nor do we require the existence of a writing when parties make a stipulation in open

court. O’Donnell v. O’Donnell, 79 A.3d 815, 821-22 (R.I. 2013); Super. R. Prac. 1.4

(“All agreements of parties or attorneys touching the business of the court shall be

in writing, unless orally made or assented to by them in the presence of the court

when disposing of such business, or they will be considered of no validity.”). Rather,

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to form an enforceable agreement, each party to that agreement must possess and

manifest an objective intent to be bound by it. O’Donnell, 79 A.3d at 820.

Our review of the record reveals that Mr. Mendes’s on-the-record agreement

before the trial justice on January 18, 2023, demonstrates his manifestation of a

specific intent to be bound by the terms that defendant’s counsel read into the record.

Specifically, in response to the trial justice asking Mr. Mendes whether he approved

of the settlement terms between the parties, Mr. Mendes replied by unequivocally

stating “Yes.”5 Additionally, we observe that on January 18, 2023, Mr. Mendes not

only agreed to these terms when first asked, but he also did not voice any objection,

even after defendant’s counsel read the terms into the record a second time to ensure

that Victor Mendes, Jr. understood and explicitly agreed to them. Moreover, Mr.

Mendes made no attempt to set aside the agreement by filing a subsequent motion

for relief from judgment or order pursuant to Rule 60 of the Superior Court Rules of

Civil Procedure.

As a result, Mr. Mendes’s affirmative answer and acquiescence demonstrate

his manifestation of an intent to be bound by the in-court settlement agreement,

notwithstanding the fact that his conscience would not allow him to sign the written

5
During oral argument before this Court, Mr. Mendes attempted to assert that he did
not reach an agreement with defendant before the trial justice. Our review of the
previously quoted interaction between Mr. Mendes and the trial justice compels us
to reject this belated argument.
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settlement agreement on the following day. O’Donnell, 79 A.3d at 820. As we have

previously explained, this Court’s caselaw and Rule 1.4 of the Superior Court Rules

of Practice recognize the ability of litigants to reach an oral agreement before a trial

justice; we will not invalidate an earlier agreement premised on a litigant’s later

decision to disavow that same agreement. Ballard, 181 A.3d at 40. Mr. Mendes’s

refusal to sign the subsequent written agreement does not negate his objective

manifestation of intent to settle on the record, and the lack of a signed writing does

not alter our determination.

Therefore, we determine that the record demonstrates each party’s

understanding of the nature and consequences of their actions when they

affirmatively represented their agreement to settle the case before the trial justice.

See In re McBurney Law Services, Inc., 798 A.2d 877, 882 (R.I. 2002) (noting that,

absent an agreement between the parties, a stipulation has the attributes of a consent

judgment and parties cannot unilaterally set it aside because they no longer wish to

remain bound by its terms). Accordingly, we conclude that Mr. Mendes has waived

his ability to contest either the trial justice’s acceptance of the accountings, the

closing of the estate, or the decision to deny Mr. Mendes a jury trial and, therefore,

we are not permitted to evaluate them.

We nevertheless acknowledge that Mr. Mendes attempts to justify the

representations he made on the record for multiple reasons. Specifically, Mr.

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Mendes argues that the trial justice’s refusal to try this matter before a jury

compelled him to settle and that he therefore had no alternative but to do so. Mr.

Mendes also appears to argue that this Court should invalidate the trial court

proceedings based on the trial justice’s alleged biased and impartial behavior

favoring defendant. These justifications, such as they are, do not alter our

conclusion, however.

Mr. Mendes’s primary justification—that he felt compelled to settle based on

the trial justice’s refusal to grant his request for a jury trial—is unavailing. This

Court acknowledges Mr. Mendes’s disagreement with the trial justice’s decision

denying him a jury trial; is keenly aware of his status as a self-represented litigant;

and recognizes that Mr. Mendes perceived pressure either to settle this matter or to

lose the case before the trial justice who determined, sua sponte, that he could not

try this years-long dispute before a jury. However, the fact is that, prior to settling

this matter in open court, Mr. Mendes retained the ability to appeal the merits of the

trial justice’s decision to this Court, and thereby to challenge the denial of a jury

trial. His decision to settle this matter unfortunately forecloses our review of the

denial of a jury trial. See Costantino v. Ford Motor Company, 178 A.3d 310, 312

(R.I. 2018) (emphasizing the demanding expectations the law places on self-

represented litigants).

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This Court does not doubt the sincerity of Mr. Mendes’s subjective belief that

he had no choice but to settle this matter. Unfortunately, however, this Court must

ground its decision based on what Mr. Mendes said in court, on the record before

the trial justice, on January 18, 2023. Specifically, Mr. Mendes informed the trial

justice of his willingness to entertain settlement options and, rather than preserve

what may have constituted a valid objection to his denial of a jury trial, Mr. Mendes

explicitly agreed to settle this matter on the record.

Finally, although Mr. Mendes argues in his supplemental memorandum that

this Court should invalidate the proceedings below based on the trial justice’s

unspecified bias and impartiality favoring defendant, his generalized allegations of

bias and impartiality do not provide this Court with a meaningful opportunity to

review this argument and, therefore, Mr. Mendes has waived this issue. See Rhode

Island Housing and Mortgage Finance Corporation v. Gordon, 275 A.3d 559, 567

(R.I. 2022) (“Simply stating an issue for appellate review, without a meaningful

discussion thereof or legal briefing of the issues, does not assist the Court in focusing

on the legal questions raised, and therefore constitutes a waiver of that issue.”)

(brackets omitted) (quoting Dunn’s Corners Fire District v. Westerly Ambulance

Corps, 184 A.3d 230, 235 (R.I. 2018)). Moreover, despite his allegations of judicial

bias towards and favorable treatment of defendant, Mr. Mendes neither filed a

motion to recuse the trial justice in Superior Court, nor did he file a motion for relief

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from judgment. Ultimately, however, Mr. Mendes’s on-the-record agreement

dooms the issue in any event: we are foreclosed from reviewing any alleged pre-

settlement errors.

Accordingly, we uphold the trial justice’s order and judgment approving the

two Providence Probate Court accountings and closing plaintiff’s father’s estate.

Jurisdiction to Award Attorneys’ Fees

Mr. Mendes also asks this Court to invalidate the trial justice’s order awarding

defendant attorneys’ fees. We do so because the trial justice lacked jurisdiction to

award attorneys’ fees on March 27, 2023.

Article I, Rule 11(f) of the Supreme Court Rules of Appellate Procedure

provides that, as soon as an appeal has been docketed in this Court, the lower court

is divested of jurisdiction and lacks the authority to act in that case, even though

motions may be pending. See Thompson v. Thompson, 973 A.2d 499, 513 (R.I.

2009). It is clear from the procedural history of this matter that the trial justice

improperly heard and granted defendant’s motion for attorneys’ fees. We therefore

vacate the award of attorneys’ fees.

Conclusion

Based on the foregoing, we conclude that Mr. Mendes validly settled this

matter on January 18, 2023; this Court must credit and uphold the in-court

settlement, notwithstanding his subsequent change of heart. Further, we vacate the

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trial justice’s extra-jurisdictional award of attorneys’ fees. Accordingly, we affirm

the Superior Court’s order and judgment approving the Providence Probate Court

accountings and closing Mr. Mendes’s father’s estate, vacate the trial justice’s

subsequent decision awarding defendant attorneys’ fees, and remand the record in

this case.

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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

Ambrose C. Mendes, Jr., et al. v. Kirshenbaum &
Title of Case
Kirshenbaum Attorneys at Law, Inc.
No. 2023-89-Appeal.
Case Number
(PP 09-1820)

Date Opinion Filed March 7, 2024

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

Written By Associate Justice Melissa A. Long

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Jeffrey A. Lanphear

For Plaintiff:

Ambrose C. Mendes, Jr., pro se
Attorney(s) on Appeal
For Defendant:

Joseph F. Penza, Jr., Esq.

SU-CMS-02A (revised November 2022)