Superior Court of Massachusetts, Suffolk, Business Litigation Session
Charles E. Todesca, Jr.
Albert M. Todesca et al No. 135214
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTION TO DISMISS
L. Sanders, Justice
Charles E. Todesca, Jr. (Charles) brings this action against
his two cousins, Albert M. Todesca (Albert) and Paul A.
Todesca (Paul) as well as two other defendants alleging
wrongdoing in connection with a series of financial
transactions that date back to the 1990s. In a wide-ranging
Complaint, plaintiff asserts fourteen counts, most of them
tort-based. The defendants now move to dismiss the Complaint
pursuant to Rule 12(b)(6), Mass.R.Civ.P. Specifically, they
contend that the majority of the claims are barred by the
applicable statute of limitations, G.L.c. 260, § 2A.
They also allege that the plaintiff has no standing to assert
certain claims and that the single contract-based claim is
barred by the statute of frauds. After careful review of the
parties' submissions, this Court concludes that the
Complaint must be dismissed because it fails to state a claim
upon which relief may be granted.
27-page Complaint is a hodgepodge of allegations, and is a
far cry from the " short and plain statement of the
claim" required by Rule 8, Mass.R.Civ.P. It describes,
in less than precise fashion, a series of transactions that
occurred between Todesca Equipment, Co., Inc. (TEC) and other
entities during a time period in which Charles, Paul, and
Albert were each one-third owners in TEC and when each at
different times served as an officer and director of the
corporation. The gist of the Complaint is that Charles and
Paul, with the " substantial assistance" of their
lawyer, defendant Marshall Newman, engaged in self-dealing
and took valuable assets of TEC in breach of their fiduciary
obligations to Charles and to TEC. Although the Complaint
acknowledges that Charles was in many instances aware of
these transactions either at the time they occurred a decade
or more ago or well before 2013 (three years before the
Complaint was filed), it alleges that he was either not in a
position to understand the scope of the wrongdoing or that
the details were concealed from him.
transactions that are the subject of the tort-based claims in
the Complaint together with the allegations related to each
of them, can be briefly summarized as follows.
The transfer of assets from TEC to defendant Rochester
Bituminous Products, Inc. (Rochester), an entity owned and
controlled by defendants Paul and Albert
occurred shortly after Rochester was incorporated in June
1994. ¶ 43-44. Charles knew about the transfer, although
he was led to believe that it " would not result in
Charles losing his interest in the value of the assets."
¶ 51 of the Complaint. Unbeknownst to him, the transfer,
which was facilitated by attorney Newman, was in fact
intended " to create a windfall for Rochester Bituminous
at TEC's expense." ¶ 46 of Complaint.
TEC's purchase of Forte Brothers, Inc.
knew about this purchase at or around the time it occurred,
which was sometime in the early 1990s. ¶ 29. He was told
by the defendants, however, that TEC would benefit from this
transaction, when in fact TEC never received any benefit.
Charles and Albert used Forte to transfer other assets of TEC
" to serve their own personal interests at the
corporation's expense, and they did so without notifying
Charles." ¶ 35 of Complaint. One of these transfers
involved the sale of real property known as Ace Junkyard.
When Charles discovered that Ace Junkyard was sold to another
entity, he was assured that he would receive a share of the
proceeds of the sale, but never did. ¶ 40 of Complaint.
According to the Complaint, Forte Brothers was renamed
Todesca Forte, Inc. and later Todesca Corp., which then filed
for bankruptcy. Bankruptcy records show that Todesca Corp.
filed for bankruptcy protection in 1997. See Bankruptcy Court
docket, attached as Exhibit B to Defendant's Memorandum
The transfer of real estate located at "
Laneville/Arboretum Road in West Roxbury" (the
Lanesville Terrace Property )
to the Complaint, TEC transferred this property to Todesca
Realty Trust (TRT), a trust created in 1984 by Paul. This
occurred in 2007, three months after TEC was " dissolved
administratively." ¶ 62-63 of Complaint. Charles
did not know about this transfer. However, he became sole
officer and director of TEC in 2010 after the Secretary of
State's Office granted Albert's 2008 application for
TEC's reinstatement. ¶ 73. When Charles took the
helm at TEC, attorney Newman failed to provide him with
information about TEC and to advise him that he was "
assuming a legal responsibility to investigate the financial
circumstances of the corporation." ¶ 208 of the
Complaint. The Complaint does not state what role Newman
played vis a vis Charles between 2010 and
2012--allegations which would be necessary to show that
Newman owed some fiduciary duty to Charles at the time.
contract-based count in the Complaint (Count XIV) relates to
a transaction that occurred in 2003. Paul and Albert
persuaded Charles to borrow money against his personal
residence and give the funds generated by that loan to TEC.
Paul and Albert agreed to make payments on the loan and did
so until 2013, when they stopped making payments. There is no
suggestion in the Complaint that this agreement was reflected
in any writing signed by Paul and/or Albert.
are certain other allegations in the Complaint that do not
directly relate to any particular count but are nevertheless
relevant to the issues before the Court. In the first part of
2007, Charles " sustained a work-related injury that
resulted in three weeks of hospitalization, and significant
long-term damage to Charles' memory and ability to
work." ¶ 61 of Complaint. When Charles assumed the
position of director and sole officer of TEC in 2010, he was
" not capable of serving effectively in those
positions." ¶ 78 of Complaint. In 2011, the
Massachusetts Department of Revenue (DOR) sought to hold
Charles personally liable for the assessed and unpaid taxes
of TEC and other entities, including Rochester, the company