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Shulman v. Tosi

Superior Court of Massachusetts, Norfolk

June 1, 2017

Frederick Shulman
v.
Linda Tosi, Personal Representative No. 137270

          Filed June 2, 2017

          MEMORANDUM OF DECISION

          Michael D. Ricciuti, Justice of the Superior Court.

         In his complaint in this action, plaintiff Frederick I. Shulman claims damages from the estate of Velia N. Tosi (" the Estate"). Shulman contends that his former employers, Velia Tosi (" Velia")[1] and her husband, Carlos Tosi (" Carlos"), promised to pay him a sum of money upon the last of them to die. Shulman alleges that after Carlos and later Velia died, Linda Tosi (" Linda"), the executrix of the Velia's Estate, refused to pay the money allegedly promised.

         Shulman filed this action against Linda on October 7, 2016, one day shy of the one-year anniversary of Velia's death. In it, Shulman alleges breach of contract, quantum meruit, and breach of the implied covenant of good faith and fair dealing.

         Linda moves to dismiss under Mass.R.Civ.P. Rule 12(b)(6) for failure to state a claim, contending that this action is governed by a one-year statute of limitations contained in G.L.c. 190B, § 3-803(a) of the Massachusetts Uniform Probate Code, which requires a creditor of a deceased to file and serve an action within one year of a decedent's death, and that Shulman did not file this action and serve her within that period.[2] In response, Shulman argues that the one-year statute of limitations contained in § 3-803 does not apply because he is not a creditor of the Tosis but rather is a creditor of the Estate.

         On May 23, 2017, the Court convened a hearing on Linda's motions and requested, and received, post-hearing filings on May 26 and May 31, 2017.

         In consideration of the parties' memoranda of law and oral arguments, and for the reasons that follow, Linda's motion is ALLOWED .

         FACTS

         Because it is evaluating the legal sufficiency of a complaint pursuant to Mass.R.Civ.P. 12(b)(6), the Court will accept as true all factual allegations in the complaint and all reasonable inferences that may be drawn in the plaintiff's favor. See, e.g., Berish v. Bornstein, 437 Mass. 252, 267, 770 N.E.2d 961 (2002); Nader v. Citron, 372 Mass. 96, 98, 360 N.E.2d 870 (1977).

         Shulman began working with the Tosi family in 1966 as an assistant to Carlos, and later served as property manager for Tosi family real estate holdings. Id. at ¶ ¶ 6-9. In total, Shulman worked for Carlos and Velia for some 41 years, and a close, family-like relationship developed among Shulman, Carlos and Velia. Id. at ¶ 13.

         Shulman did not have any form of retirement plan with the Tosi family businesses. Id. at ¶ 17. At a party celebrating Shulman's 25 years of employment with the Tosi family, Carlos told Shulman that he (Carlos) and Velia intended to compensate Shulman in the future for his many years of loyal and dedicated service. Id. at ¶ ¶ 11-12. On February 21, 2007, Carlos and Velia met with Shulman, at the request of the Tosis, at which time the Tosis told Shulman they would give him the sum of $650, 000 as retirement compensation. Id. at ¶ ¶ 13-16. A few days after this meeting, Shulman, Carlos and Velia met at the Tosis' home, at which time Carlos told Shulman that the agreement to compensate Shulman $650, 000 would be reduced to writing. Id. at ¶ 20. By mutual agreement and understanding, Shulman was to retire on April 7, 2007, and the $650, 000 in retirement compensation was to be paid upon the death of the last to survive of Carlos and Velia. Id. at ¶ ¶ 18-19. No writing was created memorializing these agreements.

         Carlos died on January 24, 2011. Id. at ¶ 4. Velia died on October 8, 2015. Id. at ¶ 5. No provisions were made by the time of Velia's death to pay the compensation allegedly promised to Shulman. Id. at ¶ 23. The Estate declined Shulman's request to honor the alleged agreement. Id. at ¶ 24.

         Shulman filed this action on October 7, 2016. The return of service in this matter states that ...


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