MISC 20-000174

OCTOBER 7, 2020




Procedural History

Flora Savidis filed the Complaint on May 5, 2020, and the Verified Complaint on May 8, 2020 (the Complaint), naming Anna Vogiatzis and Garifalia Vogiatzis as the defendants. The Complaint is an action for resulting trust and for declaratory relief pursuant to G.L c. 231A, §1 et seq., regarding the property located at 730 Pleasant Street, Worcester, Massachusetts (property). Savidis filed the Affidavit of Plaintiff, Flora Savidis, on May 5, 2020. On August 11, 2020, the Vogiatzises filed their Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted or, if a resulting trust is found, a Motion to Dismiss for Failure to File a Complaint within the Applicable Statute of Limitations (Motion to Dismiss). The Vogiatzises also filed the Affidavit of Defendant, Anna Vogiatzis (Vogiatzis Affidavit or Vogiatzis Aff.) on August 11, 2020. Savidis filed the Opposition to Defendants' Motion to Dismiss and accompanying Affidavit of Plaintiff, Flora Savidis (Savidis Affidavit or Savidis Aff.). Defendant Intervenor Paul Papalilo's claim is not at issue in this motion. The Court heard argument on the Motion to Dismiss on September 30, 2020, and took it under advisement. This Memorandum and Order follows.


Savidis and the Vogiatzises have both submitted affidavits in support of their positions. A motion to dismiss under Mass. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted may be treated as a motion for summary judgment if matters outside the pleadings are presented to and not excluded by the court. Mass. R. Civ. P. 12(b). This is appropriate where all parties are given reasonable opportunity to present all material pertinent to a motion for summary judgment and where the court advises the parties of its intention to treat the motion as a motion for summary judgment. Mass. R. Civ. P. 12(b); Stop & Shop Cos. Inc. v. Fisher, 387 Mass. 889 , 892 (1983). Given the parties' affidavits presenting additional testimony, the court treats the Motion to Dismiss as a motion for summary judgment.

Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

Undisputed Facts

The following facts appear undisputed:

1. Taki Papalilo was the father of Flora Savidis and Anna Vogiatzis; Garifalia Vogiatzis is Anna Vogiatzis's daughter. Savidis Aff. ¶¶ 3, 4; Vogiatzis Aff. ¶¶ 2, 4, 6, 12.

2. Savidis and Vogiatzis grew up at the property, a single family home. Savidis Aff. ¶ 4; Vogiatzis Aff. ¶¶ 2, 3, 4.

3. Taki Papalilo, conveyed the property to Anna and Garifalia Vogiatzis in May of 1998, when Garfalia Vogiatzis was three years old. Savidis Aff. ¶ 4; Vogiatzis Aff. ¶ 10.

4. Anna and Garifalia Vogiatzis appear to have given no consideration for the conveyance. Savidis Aff. ¶ 4; Motion to Dismiss.

5. Anna and Garifalia Vogiatzis left the property in November 1998 when Taki Papalilo remarried. Savidis Aff. ¶ 6; Vogiatzis Aff. ¶ 11.

6. Taki Papalilo passed away in January of 2020. Savidis Aff. ¶ 5; Vogiatzis Aff. ¶ 12.


The Vogiatzises argue that the complaint should be dismissed for failure to state a claim on two grounds. First, they argue that Savidis has not pled a claim for a resulting trust. In cases that include a gratuitous transfer between family members, there is no presumption of a resulting trust, but instead a "contrary presumption of a gift." Citizens Bank of Massachusetts v. Coleman, 83 Mass. App. Ct. 609 , 614 (2013), citing Restatement (Third) of Trusts § 7 comment c, at 89-90 (2003) (Restatement). This presumption "‘may be rebutted in whole or in part by evidence of a different intention.'" Id., quoting Restatement § 7 comment c, at 89. This presumption may be overcome and a resulting trust imposed "if it is established that (1) the intent of the transferor at the time of the transfer was not to convey the beneficial interest to the transferee, and (2) there was acquiescence on the part of the transferee. There is no requirement that an agreement exist between the transferor and the transferee at the time of the conveyance, nor is it necessary to establish that the transferee promised to reconvey the property to the transferor." Id. at 616-617.

In support of her claim for the creation of a resulting trust, Savidis has submitted her affidavit alleging knowledge that Taki Papalilo intended for her to have an interest in the property after he no longer lived there. Savidis Aff. ¶ 5. Specifically, she was to pay the majority of the expenses of the property so that her father could continue to live there, and upon his death and the sale of the house, she would receive at least one-half of the sales proceeds. Id. at ¶¶ 4, 7. She further alleges that her father communicated this intent to her sister. Id. at ¶ 8. For her part, Anna Vogiatzis avers that she took care of her mother and then her father until he remarried in November 1998, while her sister left the property in 1989. Vogiatzis Aff. ¶¶ 4, 7, 9. The allegations in the complaint, coupled with the allegations of the Savidis Affidavit, state a claim for a resulting trust; the Vogiatzis Affidavit serves, at best, to create genuine issues of material facts as to the existence of the alleged resulting trust.

The Vogiatzises alternatively argue that if Savidis has a claim for a resulting trust, the statute of limitations has run pursuant to G. L. c. 260, § 2. General Laws c. 260, § 2, provides, in relevant part, that actions of contract "shall, except otherwise provided, be commenced only within six years next after the cause of action accrues." Id. This statute is applicable to claims for resulting trusts, but the cause of action only accrues once the plaintiff has become aware that the trust has been repudiated. Stapleton v. Macchi, 401 Mass. 725 , 729 (1988). Drawing inferences in favor of Savidis, the non-moving party, the statute of limitations would not have started running until shortly after Taki Papalilo's death in January 2020, when Savidis became aware of the Vogiatzeses' alleged breach of the resulting trust. This would place the filing of this action well within the six-year limit.


For the foregoing reasons, the Motion to Dismiss is DENIED. A continued case management conference is set down for October 21, 2020, at 10:45 a.m.