2021 | Dine

Inside the four-year family legal saga that shuttered Bethesda’s Positano restaurant

Son wants to reopen Italian fixture, but mother trying for a new establishment

share this

Positano Ristorante Italiano on Fairmont Avenue in Bethesda has operated for most of the last 44 years. The restaurant, which closed in the spring, has been at the center of a legal battle involving the family that owns it.

Photo by Dan Schere

For the better part of 44 years, Positano Ristorante Italiano has hosted birthdays, special occasions and comedy nights in dining rooms imbued with Mediterranean charm.

But the Traettino clan that served salads, seafood and veal specialties since the Carter administration has been riven by a legal dispute after the death of patriarch Luigi Traettino in 2016.

Since then, a legal battle has ensued and led to the closure of the Fairmont Avenue establishment in May.

Jimmy Traettino, the 59-year-old owner of the restaurant, wants to reopen the longtime establishment. But matriarch Angela Traettino, 88, who owns the property, wants another establishment to open there, so long as it’s not run by Jimmy.

Dave Goldberg, a broker who represents Angela, told Bethesda Beat that they are “in negotiation with a new restaurant” to take over the Positano space.

“To be clear, that restaurant is not Positano, and it is not having anything to do with Jimmy Traettino,” he said.

Neither Angela Traettino nor her attorney, Glenn Etelson, responded to multiple requests for comment for this article.

A Maryland appellate judge ruled last year that Jimmy Traettino had his mother sign over the business and the property without taking her financial well-being into account and wrote that Jimmy’s aim was maintaining below-market rents for the restaurant. That ruling led to the transfer of the property from Jimmy back to his mother.

Jimmy is still taking to the courts to find an arrangement in which he could operate the restaurant at the Fairmont Avenue site.

“I’m fighting for the corporation and the restaurant. So, one cannot say that Positano is permanently closed,” he said.

Family history

Luigi and Angela Traettino opened the restaurant in 1977 on Norfolk Avenue in Bethesda. The restaurant temporarily closed in 1979 when it moved to its current spot at 4940 Fairmont Ave.

In 2009, the Traettinos bought the neighboring space at 4948 Fairmont Ave.

Jimmy joined his parents’ business in 2001, helping them with finances and other business ventures, according to court documents. In addition to the restaurant, the Traettinos owned a commercial property on Cordell Avenue and their home on Del Ray Avenue in Bethesda.

In March 2012, Luigi and Angela sent a document to family attorney Jonathan Bromberg, explaining their wishes for the family after one or both parents died. It stated: Jimmy was to receive the Positano property on Fairmont Avenue and the restaurant; his sister, Janet, would receive three other Bethesda properties; and their brother, John, would receive other properties in Bethesda, Virginia and Tiezzo, Italy.

Some properties did not ultimately go to any of the children because they were sold before Luigi’s death, according to court records.

Luigi died in Italy on June 10, 2016. Jimmy discussed the plan to transfer the properties with his mother and siblings on Jan. 3, 2017, according to court documents.

Jimmy’s attorney, Richard Schimel, told Bethesda Beat in July that the intent was for the properties to be distributed while Luigi was alive.

“Unfortunately, Luigi died before the project could be completed,” he said.

Conflict erupts

On Jan. 10, 2017, Angela signed the deed to the Positano property over to Jimmy, who already owned the restaurant.

But Angela says she had “neither read, nor understood what she was signing” and that Jimmy did not explain that she was signing over the property, court documents state.

Angela signed the remaining properties over to John and Janet two days later.

Two months after she signed away her properties, Angela asked for the Positano property back, according to documents. Jimmy refused, and he transferred the property to a shell corporation called 3JT, documents state.

Angela sued Jimmy in Montgomery County Circuit Court in March 2017, alleging fraud, misappropriation of funds, unjust enrichment, undue influence, breach of contract and breach of fiduciary duty, according to court records. She sought damages and to rescind the transfer of the Positano property.

During the decisive Circuit Court hearing in July 2018, Judge Jill Cummins said Janet began speaking out against the plan because she was upset about not receiving a commercial property, according to a transcript of the hearing that referred to emails entered into evidence.

It wasn’t until after Janet raised objections that Angela asked for the property back, according to Cummins’ statement during the hearing.

Janet declined to comment when contacted by Bethesda Beat in August saying her attorney had advised her not to speak with the press.

Cummins also said during the hearing that there were “inconsistencies” in Angela’s testimony, and it was clear the transfers had been “discussed and understood by those involved.”

Cummins found in favor of Jimmy on most counts, but awarded Angela more than $371,000 in damages on the unjust enrichment and misappropriation claims. The judgment was reduced to $147,500 in August 2018.

Appeals court sends case back to Circuit Court

Angela appealed the case to the Maryland Court of Special Appeals, stating in her appeal that the lower court did not adequately assess the “fairness and reasonableness” of the transfer she made to her son, documents state.

The appeals court opinion, written in August 2020 by Judge Sally Adkins, states that “Angela’s financial needs are material to an analysis of what is fair and reasonable” in the transaction.

“In all, the record shows that Jimmy’s plan was to strip her of ownership and control over her assets without meaningful consideration of her financial welfare for the remainder of her life,” Adkins wrote.

Jimmy contended he was fulfilling his father’s wishes for the restaurant, preparing the estate to avoid eventual estate taxes and completing a transaction that his mother had agreed to, according to the opinion.

But the opinion states that Jimmy also “admitted to self-interested motivations” during the Circuit Court hearing.

“Jimmy expressed his fear that either his mother, or his siblings if they ended up co-owning [Positano] with him, would sell the building, ending his restaurant’s below market-rate tenancy,” Adkins wrote.

The appellate court agreed with the Circuit Court’s finding that Angela’s transfer of the Positano property was voluntary, but found that Jimmy “failed to produce sufficient evidence to meet his burden to show that this transaction was fair and reasonable,” the opinion states.

The appellate court instructed the Circuit Court to rescind the transaction of the restaurant property.

Adkins wrote in her opinion that one possibility would be for the lower court to rule that the Positano property be put into a constructive trust for Angela’s benefit.

Schimel said in another interview in July that under a constructive trust, Jimmy could operate the restaurant and pay his mother rent.

“If a constructive trust was imposed, Jimmy or somebody else would continue to own the property during Angela’s lifetime, but for her benefit. And when she died, the title would revert to Jimmy,” Schimel said.

“We thought that was consistent with the appellate decision, because the appellate decision was based upon the idea that Jimmy and his accountant and her accountant and her attorney hadn’t taken into proper consideration her financial needs for the rest of her life.”

However, not every type of constructive trust would allow Jimmy to operate the restaurant, Schimel said.

“If the property is simply held in constructive trust and there’s no obligation for her to allow him to use it, then he’s got to wait until she dies to get ownership of it and start up the restaurant,” he said.

When the case was remanded to the Circuit Court, Cummins ordered that the deed to the Positano property be transferred back to Angela.

In accordance with a 90-day eviction order Cummins signed in February 2021, Jimmy Traettino closed the restaurant in May.

Future of the space

The future of 4940 and 4948 Fairmont Ave. remains unclear.

Angela wants an independent restaurant, ideally Italian or Mediterranean, to go into the space, said Goldberg, the broker. But it won’t be associated with the family.

“The restaurant formerly known as Positano that Angela and Luigi Traettino built is closed and will not reopen,” he said.

Goldberg said Luigi and Angela Traettino “spent their lives” building Positano and the family hopes there will again be a successful restaurant, even though the Traettinos won’t be running it anymore.

The court proceedings won’t affect the future of the property because Angela is the sole owner, Goldberg said.

But Jimmy Traettino isn’t ready to let the Positano name die, or the family legacy. He still owns the restaurant business, called Mangiare Inc., the trade name for Positano,

He has appealed again to the Court of Special Appeals, with the goal of getting a mandated constructive trust — something not imposed by the Circuit Court.

Jimmy’s goal is to retake ownership of the building, so he can reopen the restaurant.

He fondly recalled the many weddings, bar mitzvahs, funeral receptions, baptisms, comedy nights and other special moments celebrated at Positano for more than 40 years. He said he doesn’t want those moments to end.

“It was a holy place, so I need to get it back,” he said.

Dan Schere can be reached at daniel.schere@bethesdamagazine.com