June 2, 2017
MEMORANDUM OF DECISION
Michael D. Ricciuti, Justice of the Superior Court.
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") 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.
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
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. 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.
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.
consideration of the parties' memoranda of law and oral
arguments, and for the reasons that follow, Linda's
motion is ALLOWED .
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
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.
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.
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.
filed this action on October 7, 2016. The return of service
in this matter states that ...