Opinion
11-P-1158
04-27-2012
VINCENT J. CURTO v. LORETTA M. CURTO & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Vincent J. Curto, commenced this action alleging breach of contract and fraud against his mother, Loretta M. Curto, after Loretta denied him access to funds he allegedly gave to his father to hold and invest for his (Vincent's) benefit. The amended complaint states that after Vincent's father died in 1975, the trust assets were 'passed' to Loretta, who subsequently transferred the assets (real property) to a separate trust for the purpose of defrauding Vincent. On Loretta's motion for summary judgment, a Superior Court judge concluded that Vincent's claims stemmed from a breach of fiduciary duty and were barred by the three-year statute of limitations period applicable to tort claims. Judgment in favor of Loretta ensued, and Vincent has appealed.
Because the parties share the same surname, we use their first names to avoid confusion.
The amended complaint also includes a claim against Thomas J. McCarthy, which is not at issue in this appeal.
Background. Viewing the summary judgment record in the light most favorable to Vincent, see Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), it appears that between 1972 and 1975, when Vincent was a professional boxer, he deposited approximately $100,000 in winnings with his father to hold and invest on his (Vincent's) behalf. The father used the money to purchase real estate. After the father died in 1975, Loretta continued to look after the properties. At some point in 2001, Vincent requested access to the trust fund. In response, Loretta denied that the trust existed and refused to give Vincent anything. Approximately five years later, in November of 2006, Vincent filed a complaint against Loretta seeking to recover the funds.
Discussion. The judge issued an oral ruling at the summary judgment hearing dismissing Vincent's claims against Loretta. He reasoned that Vincent's claim, 'in substance,' was one for breach of fiduciary duty and not breach of contract. The judge noted that although Vincent had 'styled' his claim as one based on breach of an oral contract, there was no evidence upon which a jury could conclude that Vincent and Loretta ever had entered into a contract. Furthermore, the record clearly establishes that Vincent was aware in 2001 that Loretta had repudiated any obligation to account for the money that Vincent had given his father. Based on this uncontested fact, the judge concluded that by the time Vincent filed his complaint in 2006, the three-year statute of limitations period for the claim had run, and the claim was time barred. See G. L. c. 260, § 2A; Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 517 (1997).
On appeal, Vincent argues that the judge erroneously characterized his claim as one stemming from a breach of fiduciary duty. Even if we were to assume that Vincent is correct, he fares no better because the record contains no evidence of an oral contract between Vincent and Loretta. Furthermore, Vincent's assertion that his father 'agreed' to hold his winnings in trust is not sufficient to establish an enforceable contract. See Vasconcellos v. Arbella Mut. Ins. Co., 67 Mass. App. Ct. 277, 280 (2006) ('An oral contract, like any other, requires an offer, acceptance, and consideration').
Judgment affirmed.
By the Court (Vuono, Grainger & Carhart, JJ.),