GAIL F. SULLIVAN
ROBERT M. LAWLIS & another.
Heard: February 9, 2018.
Petition for partition filed in the Land Court Department on
August 1, 2016. A motion to dismiss was heard by Keith C.
F. Sullivan, pro se.
Greenberg for the defendants.
Present: Green, C.J., Henry, & Singh, JJ.
parties to this action together own property located at
172-174 Shrewsbury Street in Worcester (property). The
plaintiff, Gail F. Sullivan, holds her 2/9 interest as the
result of a property division incident to her divorce from
her former husband, who purchased the property with the
defendant Philip P. Palmieri in 1986. As the parties'
relations deteriorated, Sullivan filed a petition in the Land
Court, seeking to partition the property. In response, the
defendants challenged the jurisdiction of the Land Court,
claiming that the property is ineligible for partition
because the relationship among the parties is in substance
and actuality as partners in a partnership, and jurisdiction
over dissolution of a partnership is in the Superior Court
rather than the Land Court. A judge of the Land Court agreed
with the defendants, dismissing the plaintiff's petition
for want of subject matter jurisdiction. We conclude that the
petition should not have been dismissed and remand the matter
for further proceedings.
summarize the evidence in the record before us. By deed dated
February 5, 1986, Louis C. DiNatale and Palmieri acquired
title to the property. DiNatale and Palmieri financed their
purchase in part by a mortgage note made jointly and
severally by them to Guaranty Bank and Trust Company, secured
by a mortgage on the property. The deed did not specify
whether the two men acquired their interests as joint
tenants, tenants in common, or otherwise. However, the two
obtained a policy of title insurance from Chicago Title
Insurance Company insuring their interests as tenants in
common. DiNatale and Palmieri subsequently conveyed a 5/9
interest in the property to the father of the defendant
Robert M. Lawlis by deed dated June 9, 1995, and duly
recorded. Lawlis's father acquired his
interest in the property as part of a "like-kind
exchange" under the Internal Revenue Code, 26 U.S.C.
§ 1031 (1994) (as in effect when Lawlis, DiNatale, and
Palmieri signed the like-kind agreement). In the agreement
for that conveyance, DiNatale and Palmieri represented that
they were the owners of the property "in fee simple and
in common." Sullivan acquired an undivided 2/9 interest
in the property by deed dated January 13, 2006, and duly
recorded, as the result of a property division incident to
her divorce from DiNatale. The deed recites that it was
supported by consideration of less than $100. Like the 1986
deed pursuant to which DiNatale and Palmieri first acquired
their interests in the property, the 2006 deed to Sullivan
includes no statement describing or defining the nature of
the estate conveyed.
is no written partnership agreement among the parties, nor is
there a business name certificate filed in the name of a
partnership. However, the record reflects that the property
is a commercial building, leased to commercial tenants. Rents
from the building are deposited into one of various bank
accounts in various names; the record includes conflicting
information about whether all of the accounts are joint or
whether Palmieri is the sole authorized signatory on one or
more of them. According to the judge's
memorandum of decision, various leases of the property refer
to the landlord in different ways, sometimes as
"Palmieri, Dinatale & Lawliss" [sic],
sometimes as Louis DiNatale and Philip Palmieri, and other
times as Palmieri and the Lawlis Trust. Palmieri manages the
property, collecting rents, paying utilities and other
expenses of the property, hiring contractors to maintain the
property, and taking other actions as necessary to manage the
property. As funds are available in the bank account,
Palmieri makes periodic distributions to himself, Lawlis, and
Sullivan, in proportion to their respective interests in the
question whether the parties have formed a partnership has
arisen in prior court proceedings, if somewhat obliquely. In
a civil dispute brought in the Worcester Division of the
District Court Department by Lawlis, DiNatale, and Palmieri
against a tenant of the property, the tenant moved to vacate
an agreement for judgment signed only by Palmieri on the
ground that Palmieri was without authority to bind the other
two plaintiffs. In that action, a District Court judge denied
the tenant's motion; the defendants assert that the order
of denial signifies agreement with Palmieri's argument
that, as a partner, he was authorized to bind the
others. For her part, Sullivan has referred to
"the partnership" in certain correspondence with
Palmieri and Lawlis, and referred to her former husband and
Palmieri as "partners" in filings made in the
Probate and Family Court incident to her divorce from
DiNatale. In his memorandum of decision, the motion judge
observed that "[n]o partnership tax returns or Schedule
K-l's have ever been filed. The defendants contend that
no such returns or schedules are required for a partnership
with this few partners so long as the income and expenses are
properly reflected on Schedule E's, but have not cited
any authority supporting that contention."
is historically an equitable remedy rooted in common law that
has since been reformed and modified by statute. See
O'Brien v. Mahoney, 179 Mass. 200, 203 (1901).
It is a division between two or more persons of property,
effected by the setting apart of their interests so that they
can enjoy and possess the property in severalty, or by a sale
of the whole and the awarding to each their share of the
proceeds. See G. L. c. 241, §§ 1, 4, 31; Delta
Materials Corp. v. Bagdon, 33 Mass.App.Ct. 333,
337-338 (1992). Properties owned in trust are not subject to
partition, see Rolland v. Hamilton, 314 Mass. 56, 60
(1943), nor are those held in partnership, see Webber v.
Rosenberg, 318 Mass. 768, 769 (1945). For cotenants,
however, partition is a matter of absolute right; it is not
dependent on the consent of any of the cotenants or the
discretion of the court. See Crocker v. Cotting, 170
Mass. 68, 70 (1898); O'Brien v. Mahoney,
supra at 203-204. In Massachusetts, partition is
governed by G. L. c. 241, and "[a]ny person, except a
tenant by the entirety, owning a present undivided legal
estate in land" may petition for the partition of such
interest. G. L. c. 241, § 1. A petition for partition
may be filed either in the Probate and Family Court or the
Land Court. G. L. c. 241, § 2.
present case, the deed under which the parties acquired their
title to the property did not specify how they would hold
their title. In the absence of language in a deed specifying
otherwise, a conveyance of land to two or more persons
creates "an estate in common and not in joint
tenancy." See G. L. c. 184, § 7. However, the form
of property ownership may be other than as provided under the
deed itself, based on evidence of a contrary intent of the
parties. In particular, title to property acquired with
partnership funds for partnership purposes is presumed to be
partnership property, even though the deed conveys title in
the names of one or more individuals. See Diranian v.
Diranian, 55 Mass.App.Ct. 605, 609 (2002), citing G. L.
c. 108A, § 8(2). See also Fall River Whaling
Co. v. Borden, 10 Cush. 458, 461 (1852)
("[L]and, whatever the aspect of the legal title, may
nevertheless be proved in equity to be part of the joint
stock of a copartnership, and as such, ...