ROBERT S. JANULEVICUS and ELAINE J. JANULEVICUS vs. ANNE M. SIZER and CHARLES E. SIZER.

By complaint filed October 19, 1989, Plaintiffs seek to impose a resulting and/or constructive trust for Plaintiffs regarding half interest of a parcel of land on Old Dana Road, in the Town of Barre ("Locus"). Plaintiffs also claim fraud and unjust enrichment.

On April 12, 1991, Plaintiffs filed an Amended Complaint in which they added four more counts: conversion; failure of Defendants to reconvey real estate deeded with an oral agreement to reconvey; cancellation of a deed obtained by fraud; and specific performance.

A trial was held on November 14 and 15, 1991. A stenographer was appointed and recorded the testimony. Twenty-two exhibits (some with multiple parts) were introduced into evidence; all of them are incorporated in this Decision for purposes of any appeal.

The following witnesses testified: Plaintiff Elaine J. Janulevicus (Elaine); Robert Hart (a land surveyor); Defendant Charles M. Sizer (Charles); Defendant Anne M. Sizer (Anne); Beverly Gaylord (Elaine and Anne's sister); Duane Sargisson (Defendants' attorney who represented them with all the transactions regarding Locus.

I find and rule as follows:

1. Elaine and Anne are sisters. Plaintiff Robert Janulevicus (Robert) is Elaine's husband. Anne and Charles are husband and wife.

2. By deed dated July 12, 1972 recorded at the Worcester District Registry (all recording references hereinafter are to that Registry) at Book 5239, Page 491 (Exhibit 2), Jeannette M. Potasky and Gertrude L. Carrier conveyed Locus to Elaine. Under an undated, unrecorded Trust Agreement (Exhibit 3) Elaine acknowledged that she held Locus in trust for herself, Robert, Anne and Charles. It is stipulated that the purchase price $5,300 was paid in equal portions by Elaine and Robert and Anne and Charles.

3. By deed dated July 14, 1972 recorded at Book 5293, Page 248 (Exhibit 4), Elaine conveyed a one-half interest in Locus to Robert and herself as tenants by the entirety and the remaining one-half interest to Anne and Charles as tenants by the entirety, the two interests being held as tenants in common.

4. Locus is divided into two tracts of land, Tract I, north of the Old Dana Road, containing according to the plan at Exhibit 1 three and a half acres, and Tract II, south of the Old Dana Road, containing according to the plan eighteen and a half acres.

5. By deed dated September 5, 1974 recorded at Book 5579, Page 11 (Exhibit 5), Defendants conveyed Tract I to Plaintiffs. By deed dated the same day recorded at Book 5579, Page 12 (Exhibit 6), Plaintiffs conveyed Tract II to Defendants. Plaintiffs therefore owned Tract I of record and Defendants Tract II. Each deed recited consideration of less than $100.00.

6. Plaintiffs sold Tract I by deed dated April 28, 1988 (Exhibit 11) to Joseph J. and Theresa A. Paquin, for recited consideration of $170,000.

7. In 1989 Plaintiffs had witness Hart prepare a plan of Tract II (Exhibit 7) creating three lots along Old Dana Road, aggregating 5.2079 acres, leaving the balance, a lot of 13.3484 acres on which Defendants' home stands. Plaintiffs did so with the idea that they were entitled to a portion of Tract II, which they suggested would be the three frontage lots.

8. Plaintiffs allege that the 1974 division of Locus (see Paragraph 5 above) was done so Plaintiffs could obtain a mortgage to build a house on Tract I and so that Tract II would not be subject to Plaintiffs' mortgage.

9. Plaintiffs claim they had an oral agreement with Defendants that Defendants would later reconvey to Plaintiffs 7.7 acres of Tract II and that a constructive or resulting trust was thus established. They also contend that Defendants, with the intent to deceive and defraud Plaintiffs, represented that if Plaintiffs would deed to them the entire Tract II, they would hold 7.7 acres in trust for Plaintiffs.

10. Plaintiffs further claim that Defendants have been unjustly enriched because Plaintiffs paid for rubbish removal, a percolation test, and a land survey and subdivision of Tract II.

11. Defendants deny the existence of any oral agreement and contend that the September 5, 1974 deeds (referred to in Paragraph 5), should stand as they appear. They also deny that Plaintiffs paid for the rubbish removal and claim that they objected to the land survey when they found the surveyors on Tract II.

12. Elaine worked for Anne in Anne's beauty salon, starting about 1963 and extending into the l980's, with one or two breaks in the 1970's; much of the work was part time or occasional. Robert and Charles had a trucking business together, which lasted for a short time and then failed. Plaintiffs contend that these prior relationships show the likelihood that Defendants had a fiduciary duty to Plaintiffs.

13. Elaine and Beverly Gaylord testified that Anne has always dominated among the sisters. Beverly Gaylord further testified in support of Elaine's version of initial conversations as to an equal division of Locus.

14. Defendants paid all the real estate taxes on Tract II. There was conflicting testimony as to whether Plaintiffs made any reimbursement.

15. Plaintiffs, through the testimony of Elaine, and to some extent her sister Beverly, contend that there were family discussions before Locus was purchased as to the investment being an equal one, with each family to have about eleven acres; that when Elaine questioned the 1974 deeds referred to at 5 above, Anne responded merely by indicating that Elaine should be ashamed of herself for doubting Anne; that there was an understanding in 1974 that "proper" deeds would be drawn up when surveying work was accomplished; that the 1974 deeds were executed only because Plaintiffs needed to mortgage Tract I when they built their house; that in 1976 there was discussion of jointly putting up houses for speculation on Tract II and Defendants did not protest that they had sole ownership of Tract II; that Plaintiffs contributed in cash to the real estate tax payments for Tract II until around 1978, after which Plaintiffs contributed by assuming the entire cost of trash removal from both houses; that just prior to Plaintiffs' sale of their house on Tract I in 1988 there was a discussion as to the possibility of Plaintiffs putting their replacement house on Tract II and that Anne's only objection to that was that Plaintiffs would be taking land with frontage on Old Dana Road, and that Anne said they could have some back land; that Elaine sent a letter (Exhibit 8) in April, 1989 enclosing the Hart survey and suggesting they split Hart's costs and have an accounting as to real estate tax payments and that Anne's only response was to question the idea of Elaine getting so much frontage land.

16. In light of the 1989 zoning, and without knowing whether all areas would be suitable for septic systems, witness Hart testified that Tract II could accomodate about 6 buildable lots without an interior road and ten or eleven with one.

17. Defendants, both of whom testified, produced a dramatically different tale from Elaine's. They say that Charles scouted out Locus for Defendants considerably before its purchase; that when Elaine was told about the purchase, she asked could she take Tract I for a house lot and that that was the only reason she was allowed into the transaction; that Elaine did the bargaining for Locus so as to play on the seller's sympathies and keep the price down and also to keep from Charles's employer the fact of Charles' purchase (he was then living in his employer's caretaker's cottage); that Plaintiffs did not contribute to the payment of real estate taxes, either in cash or by taking out trash; that Plaintiffs never suggested they were entitled to any of Tract II until 1989, when Plaintiffs' daughter, a lawyer, urged them to seek some of Tract II because of the discrepancy in the size of the two tracts.

18. In 1976 there was an exchange of correspondence between Elaine and Attorney Sargisson, Exhibits 10 and 11. The first was a July 8 letter to Sargisson and the second his response of July 16:

Dear Duane,

One of the assessors, Albert Clark from Barre, called and said that in going over our Deeds, found them incorrect. He said they are reversed. The Sizer's own our house and property, and we own theirs.

If you could please go over the Deeds at your convience (sic), and let either the Sizers or us know the results we'd appreciate it.

Thank you for your time and trouble.

Dear Elaine:

I have your letter of July 8, 1976 and I have reviewed the deeds to the property.

Tract 1 appears to be the property located on the northerly side of the road which is in your name and Bob's. Tract II which appears to be on the southerly side of the road is in the name of Charlie and Ann.

I believe that this conforms with the property as divided between you; however, if there should be any question concerning this please have Albert Clark contact me with such information as he has that would be contrary to my information.

There was no response from Elaine.

19. Plaintiffs cannot recover under alleged oral agreements, because of G. L. c. 203 §1 and c. 259 §1. In addition, there being no contract under seal, Plaintiffs are barred by the contract statute of limitations, G. L. c. 260 §2.

20. I find that there was no agreement for an equal split as suggested by Plaintiffs. I accept Defendants' contention that the understanding was that Plaintiffs were to have Tract I and Defendants Tract II. Any doubts on that score are resolved by the 1974 conveyances and Plaintiffs continued acquiescence in the resulting situation, particularly in light of Attorney Sargisson's letter. And I also note Elaine's references in Exhibit 10, to Tract II as Defendants' property and vice versa.

21. I find that no resulting trust is in effect in Plaintiffs' favor, based in part on my finding in paragraph 20 and in part because this situation is more like that in Meskill v. Meskill, 355 Mass. 148 (1969) and the authorities there cited than it is to any of the authorities cited by Plaintiffs.

22. As to an alleged constructive trust, I find no fraud by Defendants nor any violation of a fiduciary or confidential relationship. As to the latter, the most Plaintiffs can suggest is the fact of a family relationship, which is insufficient under the cases, Meskill, at 152, the failed trucking venture and Anne's employment of Elaine.

23. Based on my finding in paragraph 20, the other theories of recovery advanced by Plaintiffs fail. It may also be that most or all of them are defeated by a statute of limitations, but, finding as I do, I need not address that.

24. Plaintiffs' action is dismissed.

Judgment accordingly.