Moropito v. Simonetta

2005 BCSC 1511 Moropito v. Simonetta IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Moropito v. Simonetta, 2005 BCSC 1511 Date: 20051026 Docket: L033636 Registry: Vancouver Between: ROBERT MOROPITO PLAINTIFF And VILMA SIMONETTA, in her personal capacity and as EXECUTRIX OF THE ESTATE OF ANTONIO MOROPITO, Deceased, AND THE ESTATE OF ANTONIO MOROPITO, Deceased DEFENDANTS Before: The Honourable Mr. Justice Maczko Reasons for Judgment Counsel for Plaintiff J. P. Hamilton Counsel for Defendants K. A. Price Date and Place of Trial/Hearing: October 18 - 20, 2005 Vancouver, B.C. [1] This is an action by the plaintiff for a declaration that the defendant, Vilma Simonetta, holds the estate of the deceased, Antonio Moropito, in trust and that the plaintiff should share in the estate, or in the alternative, that the plaintiff should be compensated on a quantum meruit basis. [2] The basis of the claim is that the plaintiff performed certain services for his uncle, Antonio Moropito, and was promised a share of the estate. [3] The plaintiff is 63 years old and the nephew of Antonio Moropito. [4] The deceased, Antonio Moropito, was married to Albina Moropito, who died on September 25, 1997, when she was in her early eighties. Albina and Antonio never had children. After her death, Antonio Moropito was very sad, and needed significant help in managing his affairs. He was fully competent, aware and alert, but his wife had managed all aspects of their domestic life. He was provided with much assistance by his sister-in-law, Vilma Simonetta and her daughter, Anita Simonetta. Anita, in particular, paid his bills, did his laundry, cooked his meals and cleaned up his house. [5] Vilma Simonetta was the sister of Albina and was 20 years younger. Vilma and Albina were very close and after Vilma got married, she and her husband lived with Albina and Antonio for 3 years. Until Albina died, the two sisters saw each other several times a week. [6] Vilma was also close to her brother-in-law Antonio. It was always understood that when Albina died, Vilma would get half of Albina and Antonio's house. [7] When Albina died, Antonio transferred a half interest in the house to Vilma, in joint tenancy. Antonio also had a will, which left everything to Vilma. [8] Eventually, Antonio Moropito no longer wanted to live in the house and it was sold. He moved to a care facility. He eventually ended up at the Windermere care facility. [9] When his house was sold, half of the proceeds went to Vilma, and the other half went into Antonio's account. Antonio then put his account into joint tenancy with Vilma. These monies were always treated as his money, but were put into a joint account as a matter of convenience so that Vilma could pay his bills. [10] By the time of Antonio Moropito's death, his entire estate was in the joint account and, on his death, it passed, by survivorship, to Vilma. However, she conceded that the joint account was only a matter of convenience and she did not own any part of it while Antonio Moropito was alive and she agreed that those funds formed part of his estate. [11] The plaintiff had little to do with his uncle until Albina died. After her death, he began visiting his uncle and they became friends. [12] The plaintiff took Antonio out shopping, to visit relatives, to Italian picnics and to the barbershop. The plaintiff even cut Antonio's grass a few times, for which he was paid. [13] The claim by the plaintiff is that he provided companionship to his uncle and expended funds by driving him to various places. He says he also bought meals for Antonio from time to time; however, he acknowledged that Antonio paid for meals about half of the time. [14] The deceased told the plaintiff that he would be remembered in his will and even offered to buy the plaintiff a car in appreciation for all the plaintiff had done for him. He told the plaintiff that he was "his right-hand man" and that he would be stuck in Windermere had it not been for the plaintiff's visits. [15] I have no doubt the deceased enjoyed the plaintiff's visits. However, he was also getting visits from, and being taken out by, Vilma and Anita Simonetta. [16] The visits by the plaintiff were primarily instigated by him. However, on many occasions, the deceased telephoned the plaintiff and asked him to take him places. [17] Between August, 1997 and August 6, 2000, the date of Antonio Moropito's death, the plaintiff had 319 contacts with his uncle. Many of them were simply telephone calls. However, he did take Antonio out eight to ten times a month on average. A typical outing was two to four hours. [18] The plaintiff kept a very meticulous diary, which documents each contact with Antonio. I do not believe he did this for the purposes of this case. He kept this diary about all his activities, a practice that began before Antonio Moropito died. [19] My estimate, based on his diary, is that the plaintiff spent approximately 500 hours with Antonio. Much of it was socializing; however, the plaintiff did provide the deceased with valuable services, in particular, driving him to various places. [20] The facts proven in this trial do not, in my view, amount to the creation of a trust. The plaintiff made no contribution to the deceased's estate. He did, however, provide valuable services, and he expected to be rewarded. [21] The deceased, apparently expected to reward the plaintiff by remembering the plaintiff in his will and by offering to buy him a car. [22] I find that the plaintiff has met the requirements to be compensated on a quantum meruit basis. [23] It is difficult to calculate how much of these services were given voluntarily and how much was at the request of the deceased. [24] It is also difficult to calculate how much of the time the two spent together merely socializing for the mutual enjoyment of both. [25] I estimate the plaintiff spent approximately 500 hours with the deceased, but half of these were probably socializing or at the request of the plaintiff. If the plaintiff were paid $20/hr for his services, he would be entitled to approximately $5,000. [26] I award the plaintiff $5,000 for the services provided on a quantum meruit basis. [27] Cost will follow the event. "F. Maczko, J." The Honourable Mr. Justice F. Maczko