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