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Pawelski v. Mazurek

Appeals Court of Massachusetts.
Jun 7, 2012
968 N.E.2d 941 (Mass. App. Ct. 2012)

Opinion

No. 11–P–1325.

2012-06-7

Adam E. PAWELSKI, conservator v. Bogumila MAZUREK.


By the Court (GREEN, GRAINGER & RUBIN, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This action arose from an oral loan agreement among friends. Based upon our review of the record, we find no error in the judgment requiring the defendant, Bogumila Mazurek, to pay to the conservator, Adam E. Pawelski, $27,000.

By agreement, the case was tried on a single claim of money lent, an action in contract. See Nelson v. Pedersen, 361 Mass. 392, 392–394 (1972). At the trial, there was no dispute that a loan of $40,000 was made by Regina Zwidra to Zdzislaw Mazurek, Bogumila's husband, and that the money was used to pay off an existing mortgage on the marital residence in Dorchester, which the couple owned as tenants by the entirety. In subsequent divorce proceedings, Mrs. Mazurek acknowledged present indebtedness of $27,000 owed to Zwidra on the house loan, and claimed no payments were due at the time. The judgment of divorce dated September 18, 2001, awarded the marital residence to Mrs. Mazurek and assigned her sole responsibility for the Zwidra loan. According to Mrs. Mazurek, during their regular visits between 2001 and 2007, Zwidra never asked her to repay the money. No subsequent payments were made. There was no error in the judge's resolution of the statute of limitations defense. Where, as here, the time for performance was unspecified, the law implied a duty to repay the loan within a reasonable time. See Silva v. Pereira, 1 Mass.App.Ct. 368, 372 (1973). The question of reasonableness turned on the nature of the contract, the probable intention of the parties, and the attendant circumstances. See Charles River Park, Inc. v. Boston Redev. Authy., 28 Mass.App.Ct. 795, 814 (1990).

The judge inferred that dementia affected Zwidra's judgments and actions and found that “[f]or a period of time prior to the conservator's appointment [in 2008], [Zwidra's] condition ... negate[d] any consideration by the court that money is not due because the plaintiff did not ask the defendant for it.” Mrs. Mazurek's argument that these findings were unsubstantiated by the record lacks merit. The pleadings on file in the case established that during pretrial proceedings, Zwidra's attorney had submitted a letter from Zwidra's doctor indicating that her progressive dementia began no later than January 28, 2005. The judge was entitled to take judicial notice of these documents. See Calci v. Reitano, 66 Mass.App.Ct. 245, 246 n. 2 (2006).

In this case, evidence was presented that Mr. Mazurek borrowed $40,000 from Zwidra in 1996 while Mrs. Mazurek was in Poland; the couple made monthly cash payments on this loan until May, 1999; and that while divorce proceedings were pending, Zwidra did not expect payments. By 1999, approximately three years into the loan, the Mazureks had paid off approximately one-third of the loan principal. In these circumstances, given the nature and purpose of the loan, the judge was warranted in extrapolating a nine-year loan repayment period. Thus, the loan was not due until, at the earliest, 2005. The judge could also have properly concluded in the alternative, as she did, that the six-year repayment period left on the loan in 1999 was tolled from 1999 until the judgment of divorce on September 18, 2001 (making the loan due, as a matter of reasonableness, on September 18, 2007). Under either view, this action in contract, commenced on December 27, 2007, was timely.

To the extent that Mrs. Mazurek argues that there was no evidence regarding the original amount of the loan, the judge could have treated the $40,000 figure alluded to by her trial attorney during her opening statement (an amount that was consistent with her subsequent questioning) as a binding admission. Compare Silva v. Pereira, 1 Mass.App.Ct. at 371.

There was evidence that the loan was made in either 1995 or 1996. From the judge's findings of fact and analysis dictated from the bench, it is clear that notwithstanding one reference to 1995 as the beginning of the loan, she found 1996 to be the operative year. In any event, nothing of substance turns on the point.

Mrs. Mazurek's main contention in this appeal—that the cause of action accrued at the time the loan was made—is inconsistent with Massachusetts law. See Murphy v. Kelley, 302 Mass. 390, 391–392 (1939); Barber v. Fox, 36 Mass.App.Ct. 525, 527 (1994).

Judgment affirmed.


Summaries of

Pawelski v. Mazurek

Appeals Court of Massachusetts.
Jun 7, 2012
968 N.E.2d 941 (Mass. App. Ct. 2012)
Case details for

Pawelski v. Mazurek

Case Details

Full title:Adam E. PAWELSKI, conservator v. Bogumila MAZUREK.

Court:Appeals Court of Massachusetts.

Date published: Jun 7, 2012

Citations

968 N.E.2d 941 (Mass. App. Ct. 2012)
81 Mass. App. Ct. 1141