Fucci v. Moseley & Fucci Associates, Ltd.

Fucci v. Moseley & Fucci Associates, Ltd. (99-259); 170 Vt. 626; 751 A.2d 760

[Opinion Filed 14-Jan-2000]
[Motion for Reargument Denied 20-Mar-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-259

                             JANUARY TERM, 2000


Christopher C. Fucci	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Windsor Superior Court
                                       }	
Moseley & Fucci Associates, Ltd.       }
                                       }	DOCKET NO. 93-3-97Wrcv    

  

             In the above-entitled cause, the Clerk will enter:


       Defendant Moseley & Fucci Associates, Ltd. appeals the Windsor
  Superior Court's decision  holding it liable for $40,000 to plaintiff,
  Christopher Fucci, on his claim for deferred  compensation.  On appeal
  defendant claims the court erred in failing to dismiss the claim on the 
  grounds that it is barred by the statute of limitations.  We affirm.

       Plaintiff was a twenty-five percent shareholder of defendant
  corporation, which was formed in  1983 and incorporated in 1985.  He also
  performed services for defendant from 1983 to 1996, and  was an officer and
  director of the corporation.  On December 18, 1987, defendant acknowledged 
  in writing, in the minutes of a board of directors meeting, that it owed
  "deferred compensation"  to plaintiff for 1986 and 1987 in the amount of
  $20,000 per year.  The agreement contained no  fixed date for payment. 
  Although plaintiff continued to be a shareholder and director of defendant 
  corporation and perform services for it until 1996, he never received the
  $40,000.

       In October, 1996, a business disagreement developed between plaintiff
  and the other principal of  the defendant corporation.  Plaintiff resigned
  his positions as director and officer, and requested  payment of the
  "deferred compensation."  That demand, the first action taken by plaintiff
  to claim  his compensation since 1987, was refused by defendant, and this
  litigation ensued in March, 1997. 

       The trial court found that plaintiff's cause of action accrued in 1996
  when the defendant breached  by refusing the demand for payment. 
  Therefore, it found, the action was brought within the six-year statute of
  limitations provided in 12 V.S.A. § 511.  On appeal, defendant argues that
  because  there was no fixed date of payment, the entire lump sum was due
  and payable immediately in  1987.  Based on this argument, it claims that
  the breach occurred and the cause 

 

  of action accrued  in 1987, and the statute of limitations had expired by
  the time plaintiff filed suit in 1997. (FN1)   

       The burden of proving that a claim is barred by the statute of
  limitations rests on the party  asserting the defense.  Monti v. Granite
  Savings Bank & Trust Co., 133 Vt. 204, 209, 333 A.2d 106, 109 (1975). 
  Furthermore, findings of fact by a trial court will not be set aside on
  appeal  unless they are clearly erroneous.  See V.R.C.P. 52(a)(2); Mullin
  v. Phelps, 162 Vt. 250, 260,  647 A.2d 714, 720 (1994).  

       Defendant presented no evidence that the parties intended that the
  deferred compensation  be  payable immediately.  Although it claims that
  absent a fixed date of payment the entire lump sum  was payable
  immediately, it cites-and we can find-no support for that claim.  Cf.
  Appropriate  Tech. Corp. v. Palma, 146 Vt. 643, 647, 508 A.2d 724, 726
  (1986) (contract for lump sum  payment of stock, lacking date of payment,
  was breached after plaintiff-employee left employ, not  immediately upon
  formation of contract).  Indeed, defendant fails to deal with the central
  fact that  payment of the compensation in question was "deferred."  The
  term "deferred" is synonymous  with "postponed," Webster's Encyclopedic
  Dictionary 251 (1989), and necessarily means that  deferred compensation is
  not immediately due.

       In the absence of evidence to the contrary, the court's finding that
  there was no fixed date of  payment is consistent with the nature of
  deferred compensation and the evidence before it and, in  turn, supports
  the conclusion that defendant's obligation to pay did not come due until
  plaintiff  demanded the money.  We conclude that defendant failed to
  discharge its burden of proof to show  an alternative due date consistent
  with its claim that the limitation period had run.


       Affirmed.

 



                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN1.  Although plaintiff argues that defendant is barred from raising the
  statute of limitations  as a defense on appeal because it was not fairly
  raised at trial, see Lanphere v. Beede, 141 Vt.  126, 129, 446 A.2d 340, 341 (1982), we find it sufficient in this case that defendant pleaded  the
  defense in its answer and submitted the question to the court in its
  post-trial request for  findings.  This is not a matter raised for the
  first time on appeal.  See id.