Sears Petroleum v. Burgess Constr.
| Decision Date | 06 March 2006 |
| Docket Number | No. CIV.A. 00-10674-RBC.,CIV.A. 00-10674-RBC. |
| Citation | 417 F.Supp.2d 212 |
| Parties | SEARS PETROLEUM & TRANSPORT CORP., Plaintiff, Donald R. Lassman, Chapter 7 Trustee of the Estate of George F. Burgess, Intervenor, v. BURGESS CONSTRUCTION SERVICES, INC., George F. Burgess, Gregory Burgess, as Administrator/Executor of the Estate of Anne M. Burgess, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
M. Ellen Carpenter, Roach & Carpenter, P.C., Boston, MA, for Donald R. Lassman, Intervenor Plaintiff.
Joseph J. Coppola, Norwell, MA, for Sears Petroleum and Transport Corp., Plaintiff.
Scott J. Fishman, Jennings, Jennings, & Fishman, Weymouth, MA, for Gregory Burgess, Defendant.
Richard A. Freedman, Newman & Newman, P.C., Boston, MA, for Anne M. Burgess, Defendant.
Brian J Hughes, Jackson & Coppola PC, Assinippi Commons, Norwell, MA, for Sears Petroleum and Transport Corp., Plaintiff.
Donald H. Jackson, Jr., Assinippi Commons, Norwell, MA, for Sears Petroleum and Transport Corp., Plaintiff.
Raymond D. Jennings, III, Jennings, Jennings & Fishman, Weymouth, MA, for Gregory Burgess, Defendant.
Robert G. Najarian, Jr., Attorney at Law, Hingham, MA, for Sears Petroleum and Transport Corp., Plaintiff.
Eve A Pimonte-Stacey, Roach & Carpenter, P.C., Boston, MA, for Donald R. Lassman, Intervenor Plaintiff.
Howard I. Rosen, Newman & Newman, Boston, MA, for George F. Burgess, Burgess Construction Services, Inc., Anne M. Burgess, Defendants.
ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON STATUTE OF LIMITATIONS ISSUES (# 143)
In this action, Sears Petroleum & Transport Corporation ("Sears" or the "plaintiff") originally brought suit against Burgess Construction Services, Inc. ("Burgess Construction"), George F. Burgess ("Burgess" or the "debtor"), Anne M. Burgess a/k/a Anne Love Burgess ("Anne") and Rockland Trust Company ("Rockland Trust") to recover on a judgment for breach of contract, to reach and apply assets and for injunctive relief. During the pendency of this case, Burgess filed for bankruptcy protection and then both Burgess and Anne died. The Chapter 7 Trustee of the Estate of Burgess, Donald R. Lassman (the "Trustee"), moved to intervene in this matter since he had a similar matter pending in the bankruptcy court. Leave for the Trustee to intervene was allowed. Consequently, the Trustee is an Intervenor and the current defendants are Burgess Construction, Burgess and Gregory Burgess as Administrator/Executor of the Estate of Anne M. Burgess ("Gregory Burgess" or the "defendant")(collectively, the "defendants"). Both the plaintiff and the Trustee are seeking to recover certain allegedly fraudulent conveyances made by Burgess to Anne.
On September 28, 2005, Gregory Burgess filed the instant motion for summary judgment, along with a supporting Memorandum of Law and Statement of Material Facts, asserting that several of the claims of the plaintiff and/or the Trustee are barred by the statute of limitations. (# # 143, 144, 145) In response, on October 28, 2005, Sears filed an Opposition to Defendant's Motion for Partial Summary Judgment on Limitations Issues (# 148), and similarly, on October 31, 2005, the Trustee filed an Opposition to Defendant's Motion for Partial Summary Judgment on Statute of Limitations Issues (# 149). On November 7, 2005, the defendant filed a Reply Brief of Defendant in Response to the Trustees [sic] Opposition to Defendant's Motion for Summary Judgment on Statute of Limitations Issues (# 151). Then, at the Court's request, on November 22, 2005, the Trustee filed a Memorandum of Law on Standing of Sears Petroleum to Pursue Causes of Action for Fraudulent Conveyances of Funds (# 159) and a Supplemental Brief with Regard to the Statute of Limitations on the Resulting Trust Count (# 160). On November 29, 2005, Sears, with the Court's permission, filed a Reply to Trustee's Memorandum on Limitations Issues (# 165). On December 5, 2005, the Court held a hearing and heard argument from the parties regarding the motion for summary judgment. Thus, the motion is now in a posture for resolution. For the reasons set forth below, the Court shall has denied in part and allowed in part the motion for summary judgment.
By deed dated July 30, 1962, Burgess and Anne took title to a residential property located at 104 South Pleasant Street, Hingham, Massachusetts (the "property"). (Verified Complaint # 1 ¶ 11) The property was the Burgess' marital property, and they lived there from 1962 until their deaths. (# 1 ¶ 11) On or about July 31 1962, the property was transferred by Burgess and Anne to the Pleasant Street Realty Trust, of which Burgess was the Trustee. (# 1 ¶ 12) On or about April 22, 1965, the property was conveyed by the Pleasant Street Realty Trust to Burgess and Anne, as tenants by the entirety. (# 1 ¶ 13) Immediately thereafter, by deed recorded on April 23, 1965, the property was conveyed to Anne solely. (# 1 ¶ 14)
During his lifetime, Burgess operated a number of contracting businesses, including "Burgess Steeplejacks" and "Burgess International." (Joint Pre-Trial Memorandum # 150 at 1) Burgess Construction was organized on August 9, 1993. (# 150 at 3) For the most part, Burgess did not keep any type of financial records or bank accounts for his business or personal use. (# 150 at 2) It was his practice to cash checks received from his contracting jobs at check cashing establishments, pay his workers in cash and keep the rest for himself. (# 150 at 2) Otherwise, he would deposit his business and personal checks into a checking account held solely in Anne's name. (# 150 at 3)
On or about November 26, 1993, Burgess (first doing business as Burgess International Ltd. Corp. and then as Burgess Construction) contracted with Sears to install two steel storage tank bottoms and provide other tank upgrades for a total contract amount of $326,000. (# 150 at 4) By letter dated March 25, 1995, Sears wrote to Burgess giving notice of breach of contract and of the resulting damages to Sears. (# 150 at 5)
Sears alleges that the funds of Burgess Construction were used for the personal benefit of Burgess and Anne. (# 1 ¶ 19) Sears was directed by Burgess to wire payment for services rendered by Burgess Construction to an account at Rockland Trust which Burgess referred to as the "Burgess Account." (# 1 ¶ 20) Sears believes that the account at Rockland Trust was in the name of Anne M. Burgess and that Burgess and Anne used this account to keep funds belonging to Burgess Construction away from Burgess Construction's creditors and as their own personal account. (# 1 ¶ 22)
On December 29, 1999, Sears recovered a judgment (the "judgment") for breach of contract against Burgess Construction and Burgess in the United States District Court for the Northern District of New York for the sum of $400,649.37, plus prejudgment interest in the amount of $162,262.98 for a total of $562,912.35. (# 1 ¶ 6) The defendants have never paid any part of the judgment. (# 1 ¶ 8) On April 6, 2000, Sears filed the instant action. (See generally # 1)
On December 15, 2000, Burgess d/b/a Burgess Construction filed a voluntary petition under Chapter 7 of the Bankruptcy Code. (Adversary Complaint # 144-2 ¶ 7) The Trustee was appointed immediately thereafter. (Joint Stipulation of Facts # 141 ¶ 24) In connection with the bankruptcy, Burgess was deposed and he testified inter alia that he never filed a federal or state tax return and never paid withholding taxes for the employees of his various businesses. (# 144-2 ¶ 21) He testified further that Anne never worked and earned only a de minimus income since 1960. (# 144-2 ¶ 22) Burgess was Anne's only source of financial support, was the sole contributor of household income and the sole source of funds used to maintain the property. (# 144-2 ¶¶ 24, 25) On a number of occasions, both before and after Burgess filed for bankruptcy, Burgess transferred his income to Anne, Anne deposited the funds into her accounts and used the funds to pay the expenses of maintaining the property and other household and living expenses. (# 144-2 ¶¶52, 53; # 150 at 5-6, 14)
On May 28, 2003 Burgess died and on June 6, 2004 Anne died. (See Suggestions of Death # # 109, 131) The Burgess' son, Fred, lived with his parents at the property until after Anne's death. (# 150 at 15)
Summary judgment purports "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Podiatrist Ass'n, Inc. v. La Cruz Azul De Puerto Rico, Inc., 332 F.3d 6, 12 (1 Cir.2003) (citing Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1 Cir. 1990) (quoting Fed.R.Civ.P. 56 Advisory Committee's note)). The party moving for summary judgment bears the initial burden of asserting the absence of a genuine issue of material fact and "support[ing] that assertion by affidavits, admissions, or other materials of evidentiary quality." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1 Cir.2003). After the moving party has met its burden, "the burden shifts to the summary judgment target [the nonmoving party] to demonstrate that a trialworthy issue exists." Mulvihill, 335 F.3d at 19 (citing Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1 Cir.2000)).
When considering whether to grant summary judgment, the Court must determine whether:
. . . the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
In making this assessment, the Court must "scrutinize the record in the light most flattering to the party opposing the motion, indulging all reasonable inferences in that party's favor." Mulvihill, 335 F.3d at 19 ...
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