MISC 07-345851

August 2, 2011

ESSEX, ss.

Long, J.


This is a partition action. Plaintiffs Marie Giannantonio, Nicholas Coppola and Gabriel Coppola, siblings of the late Theodore Coppola, are co-tenants of the property at 19 Strawberry Hill in Danvers, along with defendant Sonia Deraverdisian, Theodore's long-time companion. They became co-tenants when the Theodore Coppola Family Trust (of which they were the beneficiaries) terminated at Theodore's death in 2006. They do not dispute each other's respective percentage interest - Marie (16 2/3%), Nicholas (16 2/3%), Gabriel (16 2/3%), and Sonia (50%). [Note 1] They do not dispute that the property, a single family residence, could not advantageously be divided. They do not dispute the price at which the property was sold ($475,000). Nor do they dispute the costs and fees associated with the partition proceeding - the commissioner's and broker's fees, etc. which already has been paid from the sale proceeds. What is disputed, and very much so, is the entitlement Sonia claims to reimbursement of certain property-related expenditures she made both before and after her co-tenancy began, and whether she is liable to her other co-tenants for "rent" for the period in which she lived at the property while a co-tenant. See G.L. c. 241, § 23.

A trial was held before me, jury-waived. Based upon the evidence admitted in connection with the trial, my assessment of the credibility, weight, and inferences to be drawn in light of that evidence, and as more fully explained below, I find and rule that Sonia is entitled to $21,222.93 from the plaintiffs' percentage share of the net proceeds, pursuant to G.L. c. 241, § 23. The award reflects the expenses paid by Sonia that were made in preservation of the property to the benefit of all the co-tenants and that were sufficiently tied to that preservation. The remainder of the net sale proceeds shall be distributed to the parties in accordance with their respective percentage shares. Sonia is not liable to her co-tenants for rent since she did not oust them from the property during her occupancy. In addition, Sonia may retain possession of the chandelier she removed from the property following the closing. Finally, I find and rule that plaintiffs' contempt motion is denied. As such, plaintiff's motion for reimbursement of attorney fees arising from the contempt motion also is denied.


Plaintiffs and defendant, as tenants in common, became owners of 19 Strawberry Hill Lane on November 21, 2006. This action was brought to partition the property and, pursuant to court order, the property was sold on March 5, 2009 for the agreed price of $475,000. Prior to their tenancy, the parties held an interest in the property as beneficiaries of the Theodore G. Coppola Family Trust, which was created by the late Theodore G. Coppola, as sole trustee, on March 6, 1981. When the trust terminated at Theodore's death (November 21, 2006), the parties became tenants in common, possessing an absolute right to partition from and after that time, and held the following percentage shares: Marie R. Giannantonio - 16 2/3%; Nicholas A. Coppola - 16 2/3%; Gabriel A. Coppola - 16 2/3%; and Sonia Deravadisian - 50%. [Note 2] O'Brien v. Mahoney, 179 Mass. 200 , 204 (1901).

As noted above, Marie, Nicholas and Gabriel are Theodore's siblings. Sonia met Theodore in the mid-1950s and had a relationship with him thereafter that lasted approximately 50 years. When they first met, Theodore resided at 11 Cambridge Street in Revere and, though married at that time, separated from his wife between 1957 and 1958. He obtained a divorce in the 1970s and never remarried. Prior to 1990, Sonia and Theodore did not maintain a shared residence and, at various points, Theodore resided with other female companions in and around Boston. During this time, Theodore's employment varied, and at differing times he managed a Buick dealership, owned and operated a supermarket, established a boat dealership, and dealt in guns.

On August 18, 1978, Theodore purchased 19 Strawberry Hill Lane in Danvers for $83,000, obtaining a $40,000 loan from Lynn Five Cents Bank to do so. Sonia did not contribute financially to that purchase at that time. On March 26, 1981, Coppola deeded the property to himself as trustee of the Theodore G. Coppola Family Trust ("the Trust") and recorded the deed with the Essex (South) Registry of Deeds, Book 6802, Page 441. Article Five of the Trust listed the beneficiaries and their respective beneficial interests, and Article Four provided that upon the death of the trustee, the Trust would terminate and become the sole property of the surviving beneficiaries in proportion to their interest and as co-tenants. [Note 3] Shortly thereafter, Sonia moved into the property and established it as her permanent residence on or around 1990.

Throughout their co-residency, Sonia helped Theodore with the payment of expenses related both to the preservation of the property and to utilities; these included mortgage, tax, insurance, repair, cable, telephone, legal, and electric payments. At no time did Theodore request Sonia to contribute to these expenses because of her beneficial ownership in the property, nor was she asked or required to pay rent to the Trust. Sonia claims she contributed $95,201.58 between 1978 and 2006, and that she is thus entitled to $47,600.79 above and beyond her 50% share of the property's net sale proceeds. [Note 4] The plaintiffs disagree, arguing that Sonia's expenditures are not compensable either because they were incurred when Sonia was a beneficiary, not a co-tenant, or were not "improvements" that preserved or increased the property's market value within the scope of G.L. c. 241, § 23. Plaintiffs also are seeking rent from Sonia whom, they allege, had the exclusive "use and occupancy" of the property after Theodore's death until shortly before its sale.

Standard for Compensation under Partition and for Unjust Enrichment

Actions seeking the partition of land and compensation arising from division are comprehensively governed by G.L. c. 241. When a property cannot advantageously be divided, it is sold. The proceeds are then divided. Delta Materials Corp. v. Bagdon, 33 Mass. App. Ct. 333 (1992). This division has two steps. The presumption is that division should take place according to the parties' respective ownership shares. However, the statute provides for reimbursement of disproportionate property-related expenditures if, and only if, they increase the value of the property or, in certain circumstances, if they preserve the property's value in a way that would unjustly enrich the other co-tenants if they were not required to contribute to these expenditures. Stylianopoulos v. Stylianopoulos, 17 Mass. App. Ct. 64 , 69 (1983); G.L. c. 241, § 23. While no provision of G.L. c. 241 deals specifically with the procedure for an accounting of taxes, mortgages, and insurance payments, it is evident that such costs can and do support the preservation of a common estate. Stylianopoulos, 17 Mass. App. Ct. at 70. See also Chiminiello v. Chiminiello, 8 Mass. App. Ct. 806 , 808 n.1 (1979). To avoid a windfall to the non-contributing tenant, therefore, the paying and contributing tenants may be required to account for such costs and bear their proportional shares. Id. See also Batchelder v. Munroe, 335 Mass. 216 , 219 (1957).

Reimbursements are not limited to those made by the co-tenant claiming them. In certain circumstances, courts have awarded a co-tenant reimbursement for the value added or preserved by that co-tenant's predecessor in interest. Batchelder v. Munroe, 335 Mass. 216 , 219 (1957). The reason for this is to avoid the unjust enrichment of the non-contributing co-tenant. Id. at 218. See also Sutton v. Valois, 66 Mass. App. Ct. 258 , 265 (2006) ("A determination that a party would be unjustly enriched requires generally that the party would hold property under such circumstances that in equity and good conscience he ought not retain it.") (internal quotations and citations omitted). This same rationale applies to contributions made by a co-tenant before his or her co-tenancy began.

Standard for Contempt

To hold a party in contempt "there must be a clear and unequivocal demand and an equally clear and undoubted disobedience." Newell v. The Department of Mental Retardation, 446 Mass. 286 , 305 (2006) quoting Nickerson v. Dowd, 342 Mass. 462 , 464 (1961). Disobedience constitutes a "failure, without just excuse, to obey any lawful order of the court." In re Birchall, 454 Mass. 837 , 844 (2009) quoting G.L. c. 224, § 15. Where proven, "it is within the [c]ourt's discretion to formulate a remedy." Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501 , 571 (1997).


This case requires the court to determine whether, under G.L. c. 241, § 23, Sonia is entitled to a reimbursement and, if so, how much. This determination hinges on the nature and amount of the payments Sonia made in preservation of the property, and whether those payments did in fact preserve its value.

Sonia moved into the property on or around 1990, roughly forty-years into her relationship with Theodore and nine years after he established the Trust. Prior to that time, Sonia had contributed roughly $3500 toward Coppola's mortgage payments. [Note 5] See Accounting Table. While Sonia was under no obligation to contribute toward these expenses, Sonia testified that Theodore's financial circumstances necessitated some level of contribution, even before she established residence. Once Sonia moved into the property, she continued to contribute toward the mortgage as well as to the taxes and repairs. Sonia's financial support enabled Theodore to maintain ownership of the property and, by extension, for plaintiffs to preserve their beneficial interest therein. See Stylianopoulos, 17 Mass. App. Ct. at 67. And while Nicholas and Gabriel testified to having lent Theodore money, it is unclear whether and in what amount these funds were allocated towards payment of the mortgage and taxes. [Note 6] In contrast, money orders and checks submitted by Sonia and entered into evidence provide persuasive evidence that she alone was the contributing co-tenant.

In addition to Sonia's contributions to Theodore's mortgage and tax payments, Sonia paid Theodore's legal fees to address and remove a tax lien and writ of attachment on the property. Based on the totality of evidence presented at trial, it is likely that but for Sonia's financial contributions, the property would have been lost to foreclosure. Because taxes, mortgage payments and insurance are costs incurred to preserve the common estate, it would be inequitable to not reimburse Sonia for expenses that ultimately preserved plaintiffs' interest in the property. Stylianopoulos, 17 Mass. App. Ct. at 70. That said, this court is given leeway to assess Sonia's accounting and to limit payment only to those expenses that have a demonstrable connection with the preservation of the property. [Note 7] As such, my accounting for expenditures made prior to 2006 resulted in a figure that is considerably lower than that provided by Sonia. [Note 8] This discrepancy arises from my decision not to award the cost of utilities, to disregard checks and/or money orders whose connection with Theodore's mortgage and tax payments is tenuous at best, and to discount expenses that had no connection with the preservation of the property. [Note 9]

Plaintiffs' opposition to a credit for expenses paid prior to 2006 arises from Sonia's status as a trust beneficiary at that time, not as co-tenant. But that is irrelevant. Stylianopoulos and Batchelder show that the test is whether the plaintiffs would secure a windfall or be unjustly enriched if Sonia did not obtain a reimbursement for expenses that not only preserved the shared property, but also secured plaintiffs' current and future interest therein. See Sutton, 66 Mass App. Ct. at 265.

I now turn to Sonia's motion for the reimbursement of expenses related to the sale and closing of the property. Plaintiffs challenge this credit by arguing that these costs not only fall outside those compensable under G.L. c. 241, but also that the bulk of these expenses are the sole responsibility of a vacating co-tenant. Further, plaintiffs allege that Sonia's exclusive "use and occupancy" of the property between 2006 and 2008 merits payment to them in the form of rent. While plaintiffs are correct in asserting that Sonia alone lived at the property following Theodore's death, they fail to identify behavior giving rise to their ouster by Sonia. See Tatten v. Snowdale, 4 LCR 156 , 159 (1996) (holding that an act amounting to an "ouster must be decisive and unequivocal and evince a settled purpose to exclude the co-tenant from all enjoyment from his title"). Moreover, there was no agreement that Sonia pay rent in order to maintain or guarantee her residence. Plaintiffs thus are not entitled to rent.

As a non-ousting co-tenant, Sonia continued to preserve the property by paying the taxes, property insurance, and both labor and repairs required to leave the premises in broom-clean condition. While I am not awarding Sonia compensation for realtor Thomas Dooley's services [Note 10] and the expenses related to general trash removal, [Note 11] I find that Sonia's remaining expenses (the disposal of hazardous waste, repairs to make the structure conform to building code requirements, homeowner's insurance, etc) not only preserved the property but would also unjustly enrich the plaintiffs if they were not required to contribute towards them.

The Contempt

Plaintiffs' complaint for civil contempt alleges that Sonia failed to comply with the court's order dated October 28, 2008, directing that a purchase and sale agreement be signed and that the closing occur on or before November 25, 2008. I disagree. The evidence at trial confirmed that Sonia had properly prepared the property for a closing by November 25, 2008 and that she vacated the premises prior to closing. In any event, the closing could not take place until March 5, 2009 for reasons beyond Sonia's control. [Note 12]


For the foregoing reasons, Sonia is awarded $21,222.93, from the plaintiffs' percentage share, in compensation for expenditures she made to preserve the value of the property (50% of the total she expended, i.e. the share that should have been contributed by the co-tenants). The remainder of the net sale proceeds should be distributed in accordance with the parties' respective percentage shares. Plaintiffs' motion that the court fine Sonia in contempt is DENIED. As such, plaintiffs motion for reimbursement of legal fees arising from their contempt motion also is DENIED. Judgment shall enter accordingly.


Keith C. Long


Accounting Table

Sonia's Reimbursable Expenditures

Nature of Expense Company/Entity Amount Date
Property Insurance      
  Vermont Mutual $353.00 August 1, 2007
  MPIUA $668.00 Nov. 3, 2007
  MPIUA $674.00 Dec. 21, 2007
  MPIUA $674.00 Feb. 19, 2008
  MPIUA $674.00 March 27, 2008
  MPIUA $95.00 May 6, 2008
  MPIUA $722.50 Sept. 25, 2008
  MPIUA $437.50 Nov. 24, 2008
  MPIUA $437.50 Jan. 7, 2009
  Total $4,735.50  
Property Insurance Credit      
  Vermont Mutual $146.00  
  Net Total $4,589.50  
Repairs and Other Necessary Costs Associated with Sale of Property      
  Murphy Plumbing $696.11 July 14, 2008
  Danvers Fire Dept. $35.00 October 27, 2008
  Lowe's $78.19 October 25, 2008
  Rich Electric $269.23 October 31, 2008
Checks (6 Total) Provencher—Waste Removal $3,047.50 November 11–28, 2008
  Total $4,126.03  

Sonia's Payments to or in the name of Theodore Coppola, related to the property

Legal Fees (To Address and Remove Tax Lien and Writ of Attachment)      
  Bonin, Zalcman & Lemelman $5,000.00 June 11, 1991
  David Yarosh $700.00 September 18, 1991
  Yarosh, Feldman & Yarosh $1,000.00 October 22, 1991
  Yarosh, Feldman & Yarosh $800.00 October 22, 1991
  David Yarosh $1,000.00 March 13, 1992
  David Yarosh $1,000.00 March 13, 1992
  David Yarosh $500.00 March 13, 1992
  Total $10,000.00  
Mortgage Payments      
  Money Order $350.00 July 31, 1981
  Money Order $350.00 August 4, 1981
  Money Order $350.00 August 17, 1981
  Money Order $350.00 Sept. 16, 1981
  Money Order $400.00 October 19, 1981
  Money Order $500.00 November 6, 1981
  Money Order $500.00 January 23, 1983
  Money Order $350.00 March 14, 1983
  Money Order $350.00 March 14, 1983
  Money Order $691.93 January 6, 1992
  Money Order $691.93 June 23, 1992
  Money Order $340.85 July 30, 1992
  Money Order $340.85 July 30, 1992
  Money Order $10.00 October 19, 1992
  Money Order $340.85 October 19, 1992
  Money Order $340.85 January 27, 1993
  Money Order $314.39 February 10, 1993
  Money Order $200.00 March 8, 1995
  Total $6,771.65  
Real Estate Taxes      
Money Order Town of Danvers $3,701.93 January 25, 1991
Money Order Town of Danvers $500.00 October 22, 1991
Money Order Town of Danvers $1,000.00 October 22, 1991
Money Order Town of Danvers $1,000.00 April 14, 1994
Money Order Town of Danvers $79.91 April 14, 1994
Money Order Town of Danvers $1,000.00 April 14, 1994
Money Order Town of Danvers $1,000.00 April 14, 1994
Money Order Town of Danvers $3,100.00 June 6, 2007
Money Order Town of Danvers $3,073.64 April 10, 2008
Money Order Town of Danvers $736.71 July 16, 2008
  Total $15,192.19  
Household Repairs      
Personal Check James Imperial (Plumber) $500.00 April 30, 2004
Personal Check James Imperial $50.00 April 30, 2004
Personal Check James Imperial $255.00 May 10, 2004
  Total $805.00  
  Grand Total $42,445.85  


[Note 1] To be more precise, the plaintiffs' shares are each 1/3 of 50%.

[Note 2] See n. 1.

[Note 3] Sonia and the plaintiffs were named as the trust beneficiaries at that time, but the trust was completely revocable at any time prior to Theodore's death. Thus, at any time, Theodore could have eliminated all or any part of Sonia's interest in the property.

[Note 4] Following Theodore's death, Sonia remained in residence until on or around November 28, 2008, and, prior to the March 5, 2009 sale of the property, contributed to the property's insurance, tax and repair payments.

[Note 5] Theodore established the Trust in 1981, and while Sonia maintains that she incurred expenses relating to the preservation of the property starting in 1978, records show that she started contributing to these expenses shortly after the Trust was established.

[Note 6] Nicholas testified to having given Theodore between $15,000 and $20,000, and that some of the money lent by their mother to Theodore was used for payment of the property's real estate taxes. Gabriel testified to having given Theodore between $30,000 and $40,000 for the same purpose. I am not persuaded. To the contrary, the evidence suggests that the money Theodore obtained from plaintiffs and their mother was invested in Theodore's various business ventures.

[Note 7] To establish this connection, the court looked to checks and money orders supplied by Sonia, and only provided credit where the payment a) possessed a memo notation referencing tax or mortgage payment and/or b) was made directly to the town of Danvers or the bank that held the mortgage, and was drawn from Sonia's account.

[Note 8] As part of Sonia's accounting, she included bank-issued receipts reflecting outstanding balances for and payments to Theodore's mortgage. It is Sonia's contention that these documents reflect the bulk of her contributions to Theodore's mortgage payments. I disagree. There are no attached checks or money orders to confirm that Sonia's money was used to make these payments. As Sonia testified, much of the money she paid Theodore was in the form of cash, and given the many business ventures and other personal relationships with which he was engaged, there is no telling where that cash went.

[Note 9] Sonia alleges a total contribution of $95,201.28 from 1978 to 2006. I find a total recompensable expenditure of $42,445.85, for which Sonia will be awarded 50% from plaintiffs' share.

[Note 10] I am not awarding Sonia $1,000 for services rendered by Thomas Dooley as no evidence was provided to substantiate that expense or to establish the nature of his services. In addition, I am not awarding Sonia $170.40 for waste removal performed by the town of Danvers as this debris was not of the kind removed by Provencher Movers, i.e. hazardous waste. Finally, I am awarding Sonia $3,047.50 for services rendered by Provencher Movers despite Sonia's request for $2,547; I arrived at the awarded total by adding Sonia's direct check payments to Provencher. Her lower figure was based on a miscalculation.

[Note 11] See Dexter Assocs. v. Worcester Lerner Shops, 26 Mass. App. Ct. 390 , 392 (1988) (requiring a vacating tenant to leave a property broom-clean upon sale or vacancy).

[Note 12] On February 2, 2009, this Court allowed the Assented to Motions to Extend the Time for Court Order of Sale, based upon the death of Marie R. Giannantonio, and this order directed that the closing would not take place on or about March 3, 2009. The closing took place on March 5, 2009, and was not delayed by Sonia.