DiCarlo v. Lattuca, No. 02-P-500.

CourtAppeals Court of Massachusetts
Writing for the CourtGREENBERG, BERRY, & MCHUGH, JJ
Citation802 NE 2d 121,60 Mass. App. Ct. 344
Decision Date15 January 2004
Docket NumberNo. 02-P-500.
PartiesFRANK DICARLO, JR, & another, executors, v. ROSARIO L. LATTUCA, executor.

60 Mass. App. Ct. 344
802 NE 2d 121

FRANK DICARLO, JR, & another,1 executors,2

No. 02-P-500.

Appeals Court of Massachusetts, Middlesex.

November 6, 2003.

January 15, 2004.


Gary S. Matsko for the defendant.

Leon M. Fox for the plaintiffs.


Francis DiCarlo (Frank) and Alba Lattuca (Lattuca) were partners in a real estate venture from 1964 until Frank's death in 1977. In 1988, about a year after Lattuca died, Wayne R. DiCarlo (Wayne) and Frank DiCarlo, Jr. (Frank, Jr.), Frank's sons and executors, brought suit against Lattuca's estate for a partnership accounting. After a trial without a jury, a judge of the Superior Court provided the accounting accompanied by findings of fact and conclusions of law. Lattuca's estate appeals from the resulting judgment, claiming that the complaint was barred by the statute of limitations or by laches and that, in any

60 Mass. App. Ct. 345
event, the trial judge failed to award appropriate interest on money Lattuca had advanced to the partnership. We need not reach Lattuca's interest argument because we conclude that the action was barred by the statute of limitations

Neither party challenges the judge's careful and thorough factual findings, many of which, although essential to a proper accounting, do not bear on the issues this appeal involves. We focus, therefore, on facts pertinent to our present task. In 1963 or 1964, Frank and Lattuca, who were long-time friends, formed a partnership to buy and develop a series of contiguous parcels in Maynard. Although they never reduced their agreement to writing, their arrangements contemplated that they were to share equally in the venture's profits and expenses. Lattuca, a licensed real estate broker, was to be responsible for marketing and sales and Frank was to do the necessary construction work. To carry out their plan, they formed a corporation in which they both held an interest.

The corporation began to purchase property in January of 1964 and continued to do so until 1971, by which time it owned four parcels as well as an option on a fifth. Unfortunately, drainage and frontage problems stifled the partners' development plans. Consequently, the corporation still owned each of the parcels when Frank died in 1977. From 1980 through the end of 1984, Lattuca sold the parcels and paid all outstanding mortgages. She kept the net sale proceeds.

Frank's son Wayne, a lawyer, knew Lattuca well. Indeed, Wayne had from time to time represented Frank, Lattuca, and the partnership in connection with partnership activity, although he had charged the partnership nothing for doing so. In 1978 or 1979, a year or two after Frank's death, Lattuca gave Wayne a packet of partnership documents. Sometime later, Lattuca disposed of all remaining partnership documents for what the judge found were wholly innocent reasons unrelated to any desire to prevent their inspection by Wayne or by others. As a result, the documents Lattuca had given Wayne were the only partnership documents that remained by the time of trial.

In 1985, about eight years after Frank died, Wayne raised with Lattuca the possibility of preparing a partnership accounting. No accounting resulted. During that year, however,

60 Mass. App. Ct. 346
Lattuca paid $10,000 to Frank's widow, a payment the trial judge found to have been a distribution of partnership funds. That was the only distribution Lattuca made before her death in February of 1987

Shortly after Lattuca died, Wayne contacted the executor of her estate about an accounting. The executor told Wayne that he had no partnership records and could not or would not perform an accounting. Wayne did not tell the executor that he had the documents Lattuca had given him in the late 1970's. The executor later hardened his position by telling Wayne that Frank had had no interest in any of the Maynard properties and, as a consequence, no accounting was necessary. On February 18, 1988, about eleven years after Frank's death and a year after Lattuca's, Wayne and Frank, Jr., commenced this action.

In answering the complaint, Lattuca's estate asserted the affirmative defenses of laches and the statute of limitations.4 By way of a pretrial motion, Lattuca's estate sought a judgment of dismissal on those grounds. The trial judge denied the motion, ruling that "the statute of limitations for a partnership accounting begins to run when the partnership winds up its affairs." She also found that the partnership did not complete winding up its affairs until June of 1982, that the six-year statute of limitations contained in G. L. c. 260, § 2, was applicable — a conclusion no one disputes5 — and that the action, therefore, had been commenced seasonably.

We disagree. Partnerships in Massachusetts, as in many other States, are governed by the Uniform Partnership Act (UPA), G. L. c. 108A, §§ 1 et seq. As set forth in G. L. c. 108A, § 43,

60 Mass. App. Ct. 347
"the right to an account of his interest shall accrue to any partner, or his legal representative, as against the winding up partners or the surviving partners or the person or partnership continuing the business, at the date of dissolution, in the absence of any agreement to the contrary."

"Dissolution . . . is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business," G. L. c. 108A, § 29, and dissolution occurs, inter alia, when a...

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