Hastoupis v. Gargas
| Decision Date | 10 January 1980 |
| Citation | 398 N.E.2d 745,9 Mass.App.Ct. 27 |
| Parties | Konstantinos HASTOUPIS v. Peter T. GARGAS, Executor. |
| Court | Appeals Court of Massachusetts |
Charles R. Desmarais, New Bedford (Fisher Abramson, New Bedford, with him), for defendant.
John F. Finnerty, Weston (John F. Finnerty, Jr., Boston, with him), for plaintiff.
Before BROWN, GREANEY and DREBEN, JJ.
The defendant appeals from a judgment rendered against him as the personal representative of the estate of Peter J. Haste (the decedent) and from an order denying his motion for a new trial. Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974). The action was originally brought by a complaint filed in the Supreme Judicial Court pursuant to the provisions of G.L. c. 197, § 10, as appearing in St.1954, c. 552, § 2, 1 to seek a judgment against Haste's estate on a claim not seasonably prosecuted within the short statute of limitations contained in G.L. c. 197, § 9, as amended through St.1972, c. 256. 2 The theory of the underlying action was quantum meruit for services rendered to the decedent in reliance on the decedent's unenforceable promise to leave the plaintiff one half of his estate.
After remand to the Superior Court 3 (G.L. c. 211, § 4A, as amended through St.1973, c. 1114, § 46), the case was heard by a judge without a jury and resulted in a judgment for the plaintiff in the amount of $375,000. On appeal the defendant asserts that the judge (1) erred in ruling that justice and equity required prosecution of the claim and that the plaintiff's tardiness did not amount to culpable neglect; (2) in assessing damages, misapplied the holding in Green v. Richmond, 369 Mass. 47, 55-61, 337 N.E.2d 691 (1975), which permits the estate's value to be considered by the fact finder as some evidence of the value placed by the decedent on the plaintiff's services; and (3) erred in denying the defendant's motion for a new trial. We affirm both the judgment and the order denying a new trial.
The record before us contains the findings and rulings of the judge, a transcript of the evidence, and certain exhibits. The judge's subsidiary findings of fact will not be set aside unless clearly erroneous. Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). Neponset Reservoir Corp. v. Bashaw, --- Mass.App. ---, --- A, 391 N.E.2d 911 (1979) and cases cited. From those findings, supplemented by portions of the evidence, we draw these facts.
The plaintiff Hastoupis, skilled as a baker and a nurse, immigrated with his wife and young child to Massachusetts from Greece in 1967. Shortly after he arrived he met a relative (whom he referred to as his uncle), the decedent, then in his eighties, an unmarried businessman living in New Bedford, who had immigrated from Greece in the early 1900's and who had acquired considerable wealth in the real estate, insurance, and finance businesses. Within two weeks of their first meeting, the plaintiff and his family moved to New Bedford at the decedent's urging and took up residence in the decedent's home in an attic room above the uncle's apartment. The decedent found the plaintiff employment in a bakery.
The family soon became very close to the decedent. The plaintiff's wife did the bulk of the domestic chores, and the plaintiff worked around the house and performed a variety of maintenance tasks at the decedent's office building in New Bedford on a daily basis without pay. The plaintiff also cared for his uncle as his uncle's health began to deteriorate. In 1968 the decedent informed the plaintiff that he had a great deal of money and began to make general promises to "take care" of the plaintiff in exchange for the plaintiff's services.
In 1968 two events took place which the judge found were crucial to Hastoupis' claim. Hastoupis intended to purchase a bakery in Boston for $2,000 from a man who had had a heart attack. The decedent told him, The plaintiff testified that he relied on that statement and did not acquire the bakery.
In the summer of 1968, while the plaintiff and his wife were visiting the decedent in his summer home, they found him desperately ill. They nursed him back to health. The decedent had requested the plaintiff, who was afraid of being fired if he did not return to work, to stay and reassured him by saying to him: Throughout 1969, 1970, and 1971, the decedent had similar conversations with the Hastoupis family, in which he repeated the promises to bequeath one half of the estate. He would refer to the plaintiff and his wife as "my family" and say, "I thank the Lord with all my heart that God sent you to me to take cake of me."
The plaintiff and his family continued to live either with the decedent or close by and to care for him until 1971, when he suffered a stroke and was thereafter confined in hospitals or nursing homes. The plaintiff and his family maintained contacts with the decedent at the hospital and nursing homes during the last eighteen months of his life, and the plaintiff continued to maintain and oversee some of his uncle's real estate.
Other witnesses directly corroborated these facts. They testified that the decedent had informed them in several conversations between 1968 and 1972 that he would take care of the plaintiff in his will. A woman in her eighties, Lillian Enos, found by the judge to be an "unimpeachable" witness, testified that the decedent informed her that he was fortunate to have found the plaintiff and that Hastoupis "will be lucky some day when he gets half of everything I got." There was evidence that the defendant, a nephew of the decedent, was not close to the decedent and that the decedent was somewhat disillusioned with him. The judge substantially adopted the plaintiff's testimony and found that he had refrained from seeking his own fortune in the bakery business and had stayed with the decedent, ministering to his needs and caring for his property in reliance on the decedent's promise to leave him one-half of his estate.
After Haste's death on September 21, 1972, and newspaper publication of the presentation of his will (which had been executed on May 5, 1950, and amended by a codicil on April 17, 1961), the plaintiff discovered that he had not been provided for in the will. In October, 1972, the plaintiff consulted an attorney whom he engaged to represent him on a claim against the estate. The parties stipulated that this attorney was an experienced member of the bar, with a considerable civil practice, and an attorney on whom the plaintiff could properly rely. The bond in the estate was approved on October 18, 1972. The lawyer failed to file the claim or bring suit against the estate until September 28, 1973, after the expiration of the short statute of limitations. The plaintiff testified that he had visited the attorney's office on several occasions, that he had frequently called to inquire about the progress of his case, and that he had received repeated assurances that his claim would be filed in a timely fashion. The lawyer was ill throughout most of the relevant time periods and died on August 28, 1974. On December 23, 1974, the plaintiff, through his present counsel, filed this complaint.
The decedent's gross estate totalled $2,746,106.16. Debts of the estate, including taxes, amounted to $986,757.02, and the will provided for pecuniary legacies in the amount of $125,400. The remainder of the estate (real estate valued at $805,439.81 and approximately $500,000 in personalty) was devised and bequeathed to the defendant herein.
1. Relief from the limitations period. The defendant maintains that the plaintiff was chargeable with culpable neglect in relying on his original attorney's expertise or, in the alternative, that his attorney by missing the short statute of limitations was culpably neglectful and that counsel's neglect should be attributed on agency principles to the plaintiff. Neither assertion has merit.
General Laws c. 197, § 10, was inserted by St.1861, c. 174, § 2, and has been maintained in substantially its present form for more than 100 years. It is remedial in character, and "(i)ts operation is not limited to cases where the failure to sue seasonably was due to such fraud, accident or mistake as would be a ground for equitable relief if there were no such statute." McMahon v. Miller, 192 Mass. 241, 242, 78 N.E. 457, 458 (1906), quoting Ewing v. King, 169 Mass. 97, 102, 47 N.E. 597 (1897). A creditor is entitled to relief under § 10 if he demonstrates that his claim has merit, that equity and justice require that its validity be recognized, and if he establishes that his failure to commence the action within the time prescribed was not due to his carelessness or to any lack of diligence for which he might properly be censured or blamed. Downey v. Union Trust Co., 312 Mass. 405, 408-409, 45 N.E.2d 373 (1942), and cases cited. Cases that have considered the statute's application have, on widely varying facts, reached divergent results; their chronicle would not be helpful. The cases are collected and discussed in 1 Newhall, Settlement of Estates § 192 (4th ed. 1958). From all the decisions construing and applying § 10, the predicament of the plaintiff in Downey v. Union Trust Co., supra, is strikingly similar to Hastoupis' difficulties in this case. In Downey, the plaintiff, the holder of a claim...
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