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02/05/91 ANTONIA INTERDONATO GIORDANO v. PAUL F.

February 5, 1991

ANTONIA INTERDONATO GIORDANO, APPELLANT
v.
PAUL F. INTERDONATO, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Sylvia Bacon, Trial Judge

Steadman, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

Many years ago the Supreme Court observed that, "At best doctrine of election of remedies is a harsh, and now largely obsolete rule, the scope of which should not be extended." Friederichsen v. Renard, 247 U.S. 207, 213, 38 S. Ct. 450, 62 L. Ed. 1075 (1918). The principal question in this appeal is whether the trial Judge correctly applied the doctrine so as to require plaintiff, before submission of the case to the jury, to elect between her separate claims of breach of fiduciary duty and breach of a subsequent agreement to devise property in settlement of the claim of fiduciary breach. We hold that the Judge erred in requiring the election before verdict, but remand for the Judge to consider application to the settlement agreement of a release later entered into by the parties.

I.

This case was before us previously in Interdonato v. Interdonato, 521 A.2d 1124 (D.C. 1987), in which we partly reversed a grant of summary judgment in favor of defendant and remanded for trial on a complex of issues involving, among other things, defenses of res judicata, statute of limitations, and release. The factual background and course of proceedings were summarized by the trial Judge in her post-trial memorandum denying plaintiff's motion for a new trial and/or judgment notwithstanding the verdict. We quote that rendition as follows:

On April 19, 1953, Guy Interdonato died unexpectedly. He was survived by his widow, Antonia, the plaintiff in this case, and by his son, Andrew, who is no longer a party to this action. Guy's brother, Paul Interdonato, the defendant in this case, allegedly agreed to take care of Antonia, who was 21 years old and spoke no English.

Between 1953 and 1963, Paul administered Guy's estate and managed the business ventures in which these brothers had been engaged. Antonia, however, was not satisfied with Paul's actions on her behalf.

In April, 1963, Antonia sued Paul in the District of Columbia for damages alleging fraudulent conduct and his breach of fiduciary duty as her attorney, as the executor of the estate and as a trustee of the testamentary trust created by Guy's Will. The 1963 suit was settled and dismissed in 1966 when Paul allegedly made an oral promise to pay Antonia's legal expenses and to either transfer property at 527, 529 and 531 Eighth Street, Southeast, to Antonia or bequeath it to Andrew. During the next decade, the property was neither transferred to Antonia nor bequeathed to Andrew.

In March, 1972, Andrew sued Paul in Prince George's County seeking an accounting of the trust funds, an appraisal of the property and other relief. The 1972 suit was terminated without trial. Paul paid $64,000 to Antonia and Andrew in exchange for a release of any and all claims with respect to the administration of the trust under Guy's will.

Thereafter, November, 1982, Antonia and Andrew brought this action in the District of Columbia Superior Court alleging fraudulent conduct by Paul, and breaches of his duty as her attorney, as an executor, and as a trustee of the testamentary trust. They also alleged that Paul's failure to transfer or bequeath the property at 527, 529 and 531 Eighth Street, Southeast, constituted a breach of the 1966 settlement agreement. Paul denied the validity of all of these claims and asserted defenses based on the statute of limitations, the res judicata effect of the 1963 suit and the release which he was given in 1973. [Andrew dismissed his claims voluntarily before trial.]

After nine days of trial, the jury returned a general verdict of $9,642.01 for Antonia. It answered ten specific questions on five separate subjects finding that:

- Paul was not Antonia's attorney, but he did breach his duties as co-executor and co-trustee.

- Paul converted income and proceeds from 428 Eighth Street, Southeast.

- Paul promised to bequeath property to Andrew in exchange for the 1966 dismissal of the 1963 suit, but did not keep that 1966 promise. *fn1 However, Antonia did not rely solely ...


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