CAROLYN A. VERDURA, Trustee, & Another v. NANCY DELGROSSO & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-780
CAROLYN A. VERDURA, trustee, 1 & another 2
vs.
NANCY DELGROSSO & another. 3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this action, the plaintiffs sought to establish a one-
half ownership interest in certain Revere property or,
alternatively, to recover one-half of the value of the property.
A Superior Court judge determined that the applicable statute of
limitations barred their claims and entered a judgment
dismissing their complaint. We affirm.
Background. In February, 1997, siblings Clorinda Ferruzzi
and Benedict J. Coviello, Jr., the sole beneficiaries and
trustees of a trust created by their deceased father, executed a
written agreement (the 1997 agreement) regarding a two-family
home in Revere (Revere property) owned by the trust. The 1997
1 Of the Benedict J. Coviello, Jr. Family Irrevocable Trust under
a declaration of trust dated December 5, 2014.
2 Carmela Coviello.
3 Daniel DelGrosso.
agreement provided that the Revere property would be transferred
from the trust to the siblings as tenants in common. The 1997
agreement further outlined how the parties would use and
maintain the Revere property. 4
On June 24, 1997, Benedict Jr. and Clorinda, as trustees of
the 1994 trust, granted to themselves by deed the Revere
property as joint tenants, rather than as tenants in common.
The legal implications of creating a joint tenancy instead of a
tenancy in common do not appear to be disputed. "A joint
tenancy is . . . characterized by the right of survivorship"
such that "[u]pon the death of one joint tenant, sole ownership
of the property automatically vests in the surviving tenant."
Battle v. Howard, 489 Mass. 480, 483-484 (2022). Tenants in
common, however, have no right of survivorship and the property
would pass to a tenant in common's heirs at law and not to the
other tenant in common. Aquino v. United Prop. & Cas. Co., 483
Mass. 820, 834 (2020). Benedict Jr. died in 1999. Thus,
according to the deed, title to the Revere property vested in
4 Pursuant to the 1997 agreement, Benedict, Jr. would continue to
occupy the second floor and garage and Clorinda would occupy or
rent out the apartment on the first floor as she saw fit.
Additionally, the agreement provided that (i) any rent derived
from renting the first floor would be taxable income to Clorinda
only; (ii) the parties would share equally in the taxes, heating
oil, water, insurance, and all other expenses to maintain the
property; (iii) each party would put $150 per month aside to pay
expenses; and (iv) each sibling would be responsible for the
interior maintenance of the portion each occupied or rented.
2
his sister, Clorinda, upon Benedict Jr.'s death. However,
Benedict Jr.'s wife, Carmela, continued to reside in the second
floor unit, and Clorinda and Carmela maintained the property in
a manner consistent with the 1997 agreement.
By a deed recorded on September 11, 2013 (the 2013 deed),
Clorinda transferred the Revere property to her daughter, Nancy.
Thereafter, Nancy and Carmela shared expenses of the property
and continued to act consistently with the 1997 agreement. On
December 19, 2013, Attorney Steven Epstein, the attorney for
Benedict Jr.'s estate, sent a letter to Clorinda's attorney,
Christopher McNamara, indicating that although Carmela stood in
the place of her husband, there was no deed transferring an
interest in the Revere property to her. Epstein asked McNamara
to contact him to discuss the matter and correct the record.
The record on appeal does not reflect that further discussion
between the attorneys took place. However, in their brief, the
plaintiffs state that "[e]veryone knew of the [1997 Agreement]
before September 10, 2013, and on and sometime after September
10, 2013 they knew of the 1997 [d]eed's grant as [j]oint
[t]enants."
On December 5, 2014, Carmela established the Benedict J.
Coviello, Jr. Family Irrevocable Trust and deeded her interest
in the Revere property to the trust (Carmela's trust).
Carmela's daughter, Carolyn, is trustee of Carmela's trust.
3
Thereafter, Nancy and Carolyn continued to share the expenses of
maintaining the property. Clorinda died on November 15, 2017;
Carmela moved out of the second floor apartment on March 1,
2020.
On April 2, 2020, the trustee of Carmela's trust and
Carmela, individually, commenced this action seeking (1)
reformation of the June 1997 deed from "joint tenants" to
"tenants in common," consistent with the siblings' written 1997
agreement, and (2) alleging fraudulent concealment by Nancy and
her husband, Daniel. 5
The defendants filed a motion for summary judgment arguing
that the statute of limitations barred the plaintiffs' claims.
At the summary judgment hearing, the plaintiffs conceded that
count one (reformation) was untimely. However, the plaintiffs
argued that the parties were "partners or co-venturers" and that
the partnership held the equitable title of the property. The
plaintiffs further argued that the partnership's interest,
supported by the 1997 agreement and the parties' conduct in
conformation with it, supersedes the deed's formal grant of a
joint tenancy. The judge determined that the statute of
5 The plaintiffs claimed, in essence, that Nancy and Daniel
fraudulently concealed the September 2013 deed when it was
recorded and sought recovery of the value of one-half of the
property.
4
limitations had passed, and thus allowed the defendants' motion
for summary judgment on June 1, 2022. 6
Discussion. We review a decision to grant summary judgment
de novo. See Le Fort Enters., Inc. v. Lantern 18, LLC, 491
Mass. 144, 149 (2023). "Summary judgment is appropriate where
there is no material issue of fact in dispute and the moving
party is entitled to judgment as a matter of law. . . . We
review the evidence in the light most favorable to the party
against whom summary judgment entered." Id. at 148-149, quoting
HSBC Bank USA, N.A. v. Morris, 490 Mass. 322, 326-327 (2022).
This case centers on the plaintiffs' contention that due to
a scrivener's error or other mutual or unilateral mistake, the
June 1997 deed erroneously reflected Benedict Jr.'s and
Clorinda's respective interests as joint tenants instead of
tenants in common. The plaintiffs, however, conceded at the
6 On June 27, 2022, the plaintiffs filed a motion to amend their
complaint, through which they sought a declaratory judgment that
the 1997 agreement created a partnership; the partnership holds
equitable title to the property; and Clorinda's deed to Nancy
passed legal, but not equitable title. They also alleged that
Nancy and Daniel fraudulently concealed "the 1997 Agreement and
the course of conduct of sharing expenses thereto" and conspired
to financially exploit a person over the age of sixty. They
sought dissolution of the partnership and an award of the value
of one-half of the property. The docket reflects that no action
was taken on the motion to amend, noting that the court had
granted the motion for summary judgment before receiving the
motion to amend. We treat this as an implicit denial of the
motion. See Pehoviak v. Deutsche Bank Nat'l Trust Co., 85 Mass.
App. Ct. 56, 65 n.13 (2014).
5
summary judgment hearing that their claim for reformation was
untimely and we, therefore, need not consider it here.
On appeal, the plaintiffs claim that the 1997 agreement
created a partnership, that the siblings agreed to retain the
Revere property as a business, and that they contributed as
capital their share of the equity in the mortgage. Although
their original complaint accused the defendants of fraudulent
concealment without claiming the existence of a partnership,
where the plaintiffs made this argument at summary judgment, in
our discretion we address it.
The plaintiffs' argument is unavailing because, even
assuming that a partnership existed, the plaintiffs failed to
comply with the applicable statute of limitations. The breach
of the partnership agreement occurred in 1997 when the property
was transferred to the siblings as joint tenants, predating the
commencement of this action by twenty-three years. Moreover,
even assuming that there was an additional breach of fiduciary
duty or breach of the partnership agreement arising from the
2013 deed from Clorinda to Nancy, the plaintiffs still would not
prevail. By all accounts, Carmela was aware, first, that the
deed in 1997 had conveyed title to the property to Benedict Jr.
and Clorinda as joint tenants, and second, that Clorinda had
transferred the Revere property to Nancy, at least by December
2013 as evidenced by Attorney Epstein's December 19, 2013
6
letter. 7 Indeed, that letter also reflects that Carmela was
aware of the transfer to Nancy by that date as well. See
Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 520
(1997) (breach of fiduciary duty and fraudulent concealment
cause of action accrues for purposes of the statute of
limitations on the "happening of an event likely to put the
plaintiff on notice of facts giving rise to the cause of
action"). Yet, plaintiffs did not commence this action until
2020, more than six years after they admittedly had notice of
their harm.
The plaintiffs seek to toll the clock by contending that
the defendants repeatedly "ratified" the partnership agreement
where, following Benedict Jr.'s death, first Clorinda and
Carmela, and then their daughters, treated the property as if
the 1997 agreement were in place. See generally Bowen v. Eli
Lilly & Co., 408 Mass. 204, 205-206 (1990). Thus, they claim
the statute of limitations should not have commenced running
until the defendants breached by refusing to negotiate
7 Massachusetts courts have recognized that it would be unfair to
conclude that the statute of limitations has run before a
plaintiff is put on notice that she has a claim. See Bowen v.
Eli Lilly & Co., 408 Mass. 204, 205 (1990). Consequently, in
certain circumstances, our courts have applied a "discovery
rule" that tolls commencement of the statute of limitations to a
date when "a plaintiff discovers, or . . . should reasonably
have discovered, that she has been harmed or may have been
harmed by the defendant's conduct." Id. at 205-206.
7
dissolution of the partnership in January 2020. Even accepting
the assertion that a partnership existed, this claim fails in
view of the plaintiffs' concession that "[e]veryone knew of the
Agreement before September 10, 2013, and on and sometime after
September 10, 2013 they knew of the 1997 [d]eed's grant as
[j]oint [t]enants," circumstances that amount to a clear breach
of the purported partnership. See id. (cause of action accrues
and statute of limitations starts to run "when a plaintiff
discovers, or any earlier date when she should reasonably have
discovered, that she has been harmed or may have been harmed by
the defendant's conduct").
We disagree that adherence to the 1997 agreement in other
respects means that Benedict Jr.'s heirs could safely ignore the
major breach of the agreement that occurred when the siblings
took title as joint tenants -- which they were aware of by 2013.
Given Carmela's knowledge of the transaction by December 2013,
as demonstrated through Attorney Epstein's December 19, 2013
letter, the plaintiffs' assertion that Nancy and her husband
fraudulently concealed the transaction is unavailing.
Furthermore, there is no evidence that Clorinda or her daughter,
Nancy, either made fraudulent representations or offered any
assurances as to the title of the Revere property to support the
existence of a genuine issue of material fact necessary to
survive the defendants' motion for summary judgment. See
8
Polaroid Corp. v. Rollins Envtl. Servs. (NJ), Inc., 416 Mass.
684, 696-697 (1993).
Thus, the plaintiffs' complaint, filed some seven years
later, is untimely -- whether it is grounded in a partnership
theory or not. Under any view of the evidence and giving the
plaintiffs the benefit of the discovery rule to set the accrual
date as December 2013, whether the plaintiffs' claim is
considered a tort, a breach of contract, or a breach of
partnership or fiduciary duty created by the 1997 agreement, the
statute of limitations lapsed before this action was commenced. 8
See G. L. c. 260, § 2A (three-year statute of limitations
applicable to tort actions); Barber v. Fox, 36 Mass. App. Ct.
525, 527, 529 (1994) (contract statute of limitations six years
and applies to breach of fiduciary duty claim arising from
failed promises). 9
8 At oral argument, the plaintiffs stressed that they are seeking
equitable relief and they intimated that the statute of
limitations therefore should not apply. To the contrary, "the
statute of limitations in general applies equally in equity and
at law." State Nat'l Bank of Lynn v. Beacon Trust Co., 267
Mass. 355, 359 (1929). See Ballentine v. Eaton, 297 Mass. 389,
394 (1937).
9 There was no error in denying the plaintiffs' 2022 motion to
amend the complaint. What we have said demonstrates the
futility of the motion and, leaving aside the timing of the
motion, a judge does not abuse his or her broad discretion to
deny a motion to amend where the claims would be futile.
Mancuso v. Kinchla, 60 Mass. App. Ct. 558, 572 (2004).
9
The judge did not err in granting summary judgment to the
defendants.
Judgment affirmed.
By the Court (Neyman,
Desmond & Smyth, JJ. 10),
Clerk
Entered: August 23, 2023.
10 The panelists are listed in order of seniority.
10