Verdura v. Delgrosso

• Docket Number: 22-P-780
• Decision Date: 23 August 2023
• Parties: CAROLYN A. VERDURA, trustee,[1] & another[2] v. NANCY DELGROSSO & another.[3]
• Court: Appeals Court of Massachusetts

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CAROLYN A. VERDURA, trustee,^[1] & another^[2]
v.
NANCY DELGROSSO & another.^[3]

No. 22-P-780

Appeals Court of Massachusetts

August 23, 2023

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).

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

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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

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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.

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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

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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,...