The Maryland Court of Special Appeals has upheld its own ruling ordering that the property of a shuttered Bethesda restaurant be deeded back to the owner’s mother.
Positano Ristorante Italiano on Fairmont Avenue closed in May 2021 during a lengthy legal battle within the Traettino family, who have owned the restaurant for more than 40 years.
Luigi and Angela Traettino opened Positano in 1977 on Norfolk Avenue before moving to Fairmont Avenue two years later. After Luigi died in 2016, Angela Traettino signed the deed to the restaurant property over to Jimmy in 2017.
But two months after the transaction, Angela sued Jimmy in Montgomery County Circuit Court, alleging fraud, misappropriation of funds, breach of contract, breach of fiduciary duty and other charges, according to court records.
The case ultimately went to the Court of Special Appeals, and in August 2020, a three-judge panel found that Jimmy, in having his mother sign over the property deed, did not take Angela’s financial well-being into account and did not ensure the transaction was fair or reasonable.
The appellate court ordered that the case be remanded to Circuit Court, with instructions to deed the property back to Angela Traettino as a means of equitable relief.
Circuit Court Judge Jill Cummins issued a 90-day eviction order in February 2021, forcing Jimmy Traettino to close Positano in May.
Although Angela owns the building on Fairmont Avenue, Jimmy still owns the restaurant company and is trying to reopen Positano. Angela Traettino’s broker, Dave Goldberg, told Bethesda Beat last year that they were trying to get a new restaurant to take over the Positano space.
Jimmy Traettino and his attorney, Richard Schimel, told Bethesda Beat last year that they were taking the case back to the Court of Special Appeals, hoping the court would order the lower court to mandate a constructive trust – one possibility for the property raised by Judge Sally Adkins in her 2020 opinion.
Under that arrangement, Jimmy could potentially operate the restaurant in the space and pay his mother rent, but she would continue to own the property while she is alive, Schimel told Bethesda Beat last year.
But the three-judge panel that ruled last week on the appeal didn’t see it that way.
Jimmy Traettino wrote in an email to Bethesda Beat on Monday that he is appealing the Court of Special Appeals’ ruling. He added that there is a notice on the Fairmont Avenue property informing anyone interested in it that there is litigation pending.
Adkins, who wrote last week’s opinion, too, wrote last week that Jimmy Traettino has had an opportunity during the litigation to “rebut the presumption of undue influence,” but has not.
“Jimmy’s failure to do so was a significant factor in our previous decision,” she wrote.
Adkins went on to write that “allowing Jimmy to conduct further briefing, hearings and discovery on the matter of Angela’s financial needs would be granting Jimmy an inequitable second bite of the apple ….”
Adkins wrote that the previous appellate ruling’s reference to a constructive trust in the opinion was simply an example of an equitable remedy for Angela Traettino that the circuit court could implement, but there was no mandate for the lower court to do so.
“Jimmy asserts that a constructive trust would be the ‘logical’ equitable remedy under the given facts and circumstances. We agree that a constructive trust was logical — but not on the terms that Jimmy desires,” Adkins wrote last week.
“Jimmy misconstrues our earlier opinion and mandate in asserting that the constructive trust should be used to benefit Angela only during her lifetime and that title should revert to Jimmy upon her death.”
Dan Schere can be reached at daniel.schere@moco360.media