SIEGEMUND v. SHAPLAND

247 F. Supp.2d 1 (2003) | Cited 0 times | D. Maine | February 24, 2003

1. The Amended Decision and Order inserts text on page 6, lines 7-9,that was inadvertently omitted from the Decision and Order issued onJanuary 17, 2003. From 1987 to 1993, Joan Siegemund actively and aggressively challengedthe activities of two probate court-appointed guardians[fn2] for her agedmother. Siegemund sought their removal, objected to their requests forapprovals of sales of property, medical treatment and livingcircumstances, and made various inflammatory accusations, all of thisconduct taking place in the probate courts of Massachusetts and Maine.(The guardians were appointed in Massachusetts where her mother firstlived and kept her assets; later the personal guardian approved themother's move with a caregiver to Machias, Maine.) Siegemund was alwaysunsuccessful. Her mother, Dr. Rose Winston, died in 1993. In 2001,Siegemund filed this lawsuit seeking compensatory and punitive damagesagainst the personal representative of her mother's estate for varioustorts (including breach of fiduciary duty; negligence; intentional andnegligent infliction of emotional distress; breach of state unfair tradepractices and consumer protection laws).[fn3] In 2002, the personalrepresentative removed the case to this Court on diversity grounds andSiegemund amended the complaint to add as defendants the twoguardians.[fn4] All the defendants[fn5] have moved to dismiss orfor summary judgment. Peter Shapland, the personal representative, andPeabody & Arnold, LLP, have moved for summary judgment on the basisthat the plaintiffs' claims are barredWest Page 3by res judicata and the plaintiff Siegemund's own failure to sue theguardians. Stephen Howe, the guardian of the property, and Dane &Howe have moved to dismiss the complaint on the grounds that theplaintiffs' claims are barred by the statute of limitations and aMassachusetts probate statute. Ira Nagel, the guardian of the person, andGreenbaum, Nagel, Fisher and Hamelburg have moved to dismiss or, in thealternative, for summary judgment on the basis that the plaintiffs'claims are barred by res judicata and the statute of limitations. TheMagistrate Judge made a Recommended Decision on September 26, 2002. Afterfull briefing and oral argument, I decline to accept the RecommendedDecision. I. Res Judicata Maine, Massachusetts and federal law recognize two branches of resjudicata: claim preclusion and issue preclusion (the latter sometimescalled collateral estoppel). See, e.g., Marin v. Marin, 797 A.2d 1265,1267 (Me. 2002). The parties agreed at oral argument that the substanceof the law is the same for all three jurisdictions, although therespective courts may use different terminology. For ease of discussion,I will use the Maine terms and primarily Maine cases.[fn6] Claim preclusion is the broader of the two branches. It bars laterlitigation of claims the plaintiff brought or could have brought. Issuepreclusion also bars later litigation, but only of the particular factualissues resolved against the plaintiff in a previous lawsuit. See, e.g.,Johnson v. Samson Constr. Corp., 704 A.2d 866, 868 (Me. 1997). Here, the defendants Shapland and Nagel sought the broader relief,claim preclusion, and the Magistrate Judge recommended it. The plaintiffshad unhelpfully argued that probate court judgments never produce resjudicata effects, an incorrect assertion; clearly the issue preclusionbranch of res judicata can apply to issues resolved in probate courtproceedings. Button v. Peoples Heritage Sav. Bank, 666 A.2d 120, 122-23(Me. 1995). But the plaintiffs are correct in pointing out that probatecourts in both Maine and Massachusetts are courts of limited jurisdictionand limited powers. Not every claim or request for relief available in acourt of general jurisdiction can be asserted in a Maine or Massachusettsprobate court. This limitation makes claim preclusion more complex."[G]enerally implicit in the rules of res judicata are several importantassumptions. it is assumed that the rendering court and the recognitioncourt are both courts of general jurisdiction, that the two courts haveidentical or substantially similar rules of procedure, and that theyare, so to speak, of equal juridical dignity." Restatement (Second) ofJudgments, ch. 6, Introductory Note, at 263 (1982). Where this premise isnot satisfied, a "limitation on merger applies where the rendering forumlacked authority to award relief on particular grounds or of a particulartype." Id. at 264. The Restatement (Second) of Judgments explicitlystates that the claim preclusion rule does not apply if: The plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authorityWest Page 4 to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief.Restatement (Second) of Judgments § 26(1)(c);[fn7] accord 18 CharlesA. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice andProcedure § 4412, at 285 (2d ed. 2002) ("Claim preclusion is readilydenied when the remedies sought in the second action could not have beensought in the first action, so long as there was good reason to maintainthe first action in a court or in a form of proceeding that could notafford full relief.").[fn8] Under Massachusetts law, probate courts do not entertain tort lawsuitsor award common law damages for torts.[fn9]West Page 5Therefore, the plaintiff Siegemund was unable to claim the reliefshe seeks here in the Massachusetts probate court.[fn10] In Maine, probate courts currently have the authority to hear tortclaims and to award common law damages for torts. Estate of Hodgkins,807 A.2d 626, 630 (Me. 2002). (I pass over the question whether that wasapparent in the early 1990s when Siegemund was litigating in Maine probatecourt.) The Maine Rules of Probate Procedure prescribe two types ofactions that may be brought in the probate courts: (1) actions within theexclusive jurisdiction of probate, known as "probate proceedings"; and(2) actions within the concurrent jurisdiction of probate, known as"civil proceedings." Me. R. Probate P. 2. A probate court may notconsolidate proceedings, however, unless they are all "probate" or all"civil." Me. R. Probate P. 42(a).[fn11] Under Maine law, the issues thatthe plaintiff Siegemund previously pursued concerning the actions of hermother's guardian were within the exclusive jurisdiction of the probatecourt. 18-A M.R.S.A. §§ 5-102 (exclusive jurisdiction overguardianship), 5-402 (same for conservatorship of property except as toclaims against the protected person herself or her estate or herproperty). By contrast, her tort claims were civil; therefore they couldnot be consolidated into the probate proceeding and be pursued in a"single action."[fn12] For these reasons, I conclude that claim preclusion arising out of theprobate proceedings is unavailable as an affirmative defense,[fn13] and IREJECT that portion of the Magistrate Judge's Recommended Decision."[fn14] Issue preclusion, on the other hand, may be available as to factsestablished in the probate courts. The lawyers concede that the motionwas not presented on that basis and, although one party finally raisedthe argument in a reply brief, the Magistrate Judge did not apply issuepreclusion analysis in his Recommended Decision. Because issue preclusionmay narrow some of the questions presented in this lawsuit, I will allowmotion practice as follows: any motions shall be filed by February 7,2003; all responses by February 28, 2003; and any reply briefs by March7, 2003.West Page 6 II. Right To Sue The Guardians The personal representative argues that the lawsuit against him (andhis law firm) on behalf of the estate should be dismissed for anadditional and independent reason, namely, that under a Massachusettsstatute the plaintiff Siegemund was entitled to sue the two guardiansherself on behalf of the estate. Mass. Gen. Laws Ann. ch. 230, § 5(West 2002). But by definition the personal representative has afiduciary obligation to the estate to preserve its assets. If he violatesthat obligation by failing to sue on a legitimate claim (as is allegedhere), the estate has a cause of action. Although an heir or legateemight sue instead under the Massachusetts statute, there is norequirement that an heir or legatee do so, and there is probably anynumber of reasons why an heir or legatee might not initiate such alawsuit. Failure to do so may ultimately be a partial affirmative defenseof failure reasonably to mitigate damages, but it hardly destroys thecause of action for the personal representative's breach of fiduciaryobligation. Nothing in the language of the statute or Massachusettscaselaw suggests that this provision was designed to let the personalrepresentative off the hook; instead, the statute simply provides anadditional remedy to an heir or legatee. Because I conclude that it isnot grounds for dismissal under Massachusetts law, I do not reach theplaintiffs' alternative argument that Massachusetts law does not apply(Maine has no comparable provision). III. Statute Of Limitations By motion to dismiss,[fn15] the two guardians of the deceased argue, inthe alternative, that the plaintiffs' claims are barred by the applicablestatute of limitations.[fn16] Under traditional choice of law rules, thestatute of limitations of the forum controls, even if the substantive lawof another state applies. Restatement (Second) of Conflicts § 142(1988). Here, Maine is the forum and under Maine law, "[t]here are twoexceptions to this rule: (1) where Maine's borrowing statute applies;[fn17]and (2) where the claim is predicated on a foreign statutory enactment."Johanson v. Dunnington, 785 A.2d 1244, 1246 (Me. 2001) (citing Hosslerv. Barry, 403 A.2d 762, 765 (Me. 1979)). For the first exception to apply, "`[t]he parties must reside in thesame state at the same time.'" Barry, 403 A.2d at 765 (quoting Frye v.Parker, 84 Me. 251, 254, 24 A. 844 (1892)). Since the plaintiff Siegemundresided in California during the period at issue, not Maine orMassachusetts, the first exception does not apply.West Page 7 The second exception applies where the statute of a foreignjurisdiction creates the liability sought to be enforced. "An action willnot be entertained in another state if it is barred in the state of theotherwise applicable law by a statute of limitations which bars the rightand not merely the remedy." Restatement (Second) of Conflicts § 143.In Counts III and VII, the plaintiffs allege that the defendants engagedin unfair trade practices in violation of Chapter 93A of theMassachusetts General Laws. Massachusetts law provides that actionsarising under Chapter 93A must be brought within four years from the datethe cause of actions accrues. Mass. Gen. Laws Ann. ch. 260, § 5A.Because this four-year limitations period clearly bars any right createdunder Chapter 93A, it applies to the plaintiffs' claims in Counts III andVII. The applicable statute of limitations under Maine law applies to theplaintiffs' remaining claims. Both Maine and Massachusetts law permit the statute of limitations tobe tolled, however, in cases of fraud. in Maine, an action that isfraudulently concealed is timely if it is commenced within six yearsafter the person entitled to bring suit discovers the claim. 14 M.R.S.A.§ 859 (Supp. 2001). In Massachusetts, the period prior to thediscovery of a cause of action that is fraudulently concealed is"excluded in determining the time limited for the commencement of theaction." Mass. Gen. Laws Ann. ch. 260, § 12. The plaintiffs allegefraudulent concealment in their amended complaint. Only the defendantNagel challenges the adequacy of their pleading in his motion todismiss. In federal court, state law fraud claims must be pleaded withparticularity pursuant to Rule 9(b) of the Federal Rules of CivilProcedure. See, e.g., Hayduk v. Lanna, 775 F.2d 441, 443 (1st Cir.1985). To establish a claim of fraudulent concealment, a plaintiff mustallege (and later prove): "(1) that defendants actively concealedmaterial facts from [plaintiff] and that [plaintiff] relied on their actsand statements to her detriment; or (2) that a special relationshipexisted between the parties that imposed a duty to disclose the cause ofaction, and the failure of defendants to honor that duty." Harkness v.Fitzgerald, 701 A.2d 370, 372 (Me. 1997) (citing H.E.P. Group, Inc. v.Nelson, 606 A.2d 774, 775 (Me. 1992)); accord Patsos v. First AlbanyCorp., 433 Mass. 323, 741 N.E.2d 841, 84647 (2001); Puritan Med. Ctr.,Inc. v. Cashman, 413 Mass. 167, 596 N.E.2d 1004, 1010 (1992). The plaintiffs allege that the personal representative had a fiduciaryrelationship with the plaintiffs and breached his fiduciary obligationsto them by withholding information pertaining to the physical andfinancial mismanagement perpetrated by the two guardians. Am. Compl.¶¶ 57-58, 63, 66-70, 72-73, 75-76. The plaintiffs further allege thatthe two guardians similarly breached their fiduciary duty by "failing andrefusing to properly disclose medical records, financial records, courtrecords, and other information for the purpose of concealing theirmisdeeds," thereby contributing to the fraudulent concealment of theplaintiffs' claims. Am. Compl. ¶ 65; see also Am. Compl. ¶¶ 18,64, 66, 83-85, 92-94. I find that the plaintiffs' allegations aresufficient to survive a motion to dismiss. IV. Section 22 Of Chapter 206 The defendant Howe, the guardian of the property, contends that theplaintiffs' claims should be barred because his final accountings, towhich the plaintiff Siegemund unsuccessfully objected, were allowed bythe Suffolk County Probate and Family Court ("Suffolk Court") on October10, 2001. Mass. Gen. Laws Ann. ch. 206,West Page 8§ 22; Howe Aff. ¶ 4 (Docket No. 57). Section 22 of Chapter 206 ofthe Massachusetts General Laws provides that following a decree ofdistribution, an accounting satisfactory to the probate court is "allowedas [the] final discharge" and "forever exonerate[s] the accountant andhis sureties from all liability under such decree unless [the] account isimpeached for fraud or manifest error."[fn18] The defendant Howe arguesthat in light of this statute, an appeal or Rule 60(b) motion forreconsideration of the final judgment in the Suffolk Court is the onlymeans for the plaintiffs to pursue any claims that they might have.[fn19]I agree. Rule 60(b) of the Massachusetts Rules of Civil Procedure permitsa court to reconsider a final judgment on the basis of fraud, among otherreasons. A motion for relief on the basis of fraud must be filed withinone year after final judgment. Mass. R. Civ. P. 60(b). After theMagistrate Judge's recommended decision,[fn20] the one-year anniversaryof the judgment entered by the Suffolk Court passed. Because the finalaccounting of the defendant Howe has been allowed by the Suffolk Court,he is now exonerated.[fn21] For this reason, I DISMISS the plaintiffs'claims against the defendants Howe and Dane & Howe LLP, as well asthe personal representative's (Shapland's) crossclaim.[fn22] V. Motion For Legal Fees And Expenses The defendant Howe requests that the plaintiff Siegemund be ordered topay his legal fees and expenses for defending against this action. It isnot clear under what authority the defendant Howe seeks relief. Hedescribes the relief he would seek "[i]f claims such as the ones assertedhere had been asserted in a Court in the Commonwealth of Massachusetts"but he does not describe the basis for his actual request for attorneyfees in this Court. (Docket No. 9) If the defendant Howe is seekingrelief under Rule 11 of the Federal Rules of Civil Procedure, he has notalleged satisfaction of the safe harbor provisionWest Page 9of that Rule. For these reasons, I Deny the defendant Howe's motion forlegal fees and expenses. VI. Conclusion 1. The motion for summary judgment filed by the defendants PeterShapland and Peabody & Arnold LLP is Denied. 2. The motion to dismiss or, in the alternative, for summary judgmentfiled by the defendants Ira Nagel and Greenbaum, Nagel, Fisher &Hamelburg is Denied. 3. The motion to dismiss filed by the defendants Stephen Howe and Dane& Howe is Granted. 4. The defendant Howe's motion to dismiss the cross-claim is Granted. So Ordered. ORDER ON MOTION FOR RECONSIDERATION The motion for reconsideration asks me to revisit the conclusions in myprevious ruling that claim preclusion (as distinguished from issuepreclusion) does not result from either the Maine or Massachusetts ProbateCourt proceedings. Maine Probate Proceedings In my original decision, I noted that Rule 42(a) of the Maine Rules ofProbate Procedure allows consolidation of proceedings only "if they areall formal probate or all civil" and concluded that Siegemund could havenot pursued her claim for money damages in her Maine (Washington County)probate action seeking appointment of a temporary guardian for hermother. Applying Restatement principles, I concluded that the Maineprobate proceedings, therefore, did not generate claim preclusion againstthe plaintiffs' current lawsuit for money damages. The motion forreconsideration calls this "a hypertechnical argument which goes farbeyond the letter or the spirit of the jurisdictional competenceexception." Defs.' Mem. Supp. Mot. Recons. at 8-9 (Docket No. 72). According to the Restatement (Second) of Judgments § 26(1)(c),claim preclusion does not apply when: The plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief.(emphasis added). The commentary states that claim preclusion is premisedon the assumption that there were no barriers to "presenting to a courtin one action the entire claim." Restatement (Second) of Judgments §26 cmt. c (1982) (emphasis added). Where such barriers exist "in thefirst action, it is unfair to preclude [the plaintiff] from a secondaction. . . ." Id. This is so regardless of the reasons for the barrier,including "vestigial procedural doctrines." Id. In other words, myconclusion follows directly the letter and spirit of claim preclusion,which is based upon what a party can do in a single lawsuit.[fn1a] Massachusetts Probate Proceedings In my original decision I observed that the Massachusetts Supreme Courthad made clear that tort damages cannot be recovered in probateproceedings. See,West Page 10e.g., Heacock v. Heacock, 402 Mass. 21, 520 N.E.2d 151, 153 (Mass. 1988)("[T]he Probate Court does not have jurisdiction to hear tort actions andaward damages."). I ruled, therefore, that the Massachusetts probateproceedings did not create claim preclusion for the plaintiffs' currentlawsuit, because the plaintiffs could not have brought all their claimsin the probate proceedings. The executor and guardian of the personaccurately point out that the Massachusetts cases I cited did not involvelawsuits against a guardian, and they argue that the cases' restrictivelanguage should not apply in probate proceedings against a guardian.Instead, they argue, tort damages can be recovered in Massachusettsprobate proceedings by suing the guardian on his bond. Massachusetts statutes do permit lawsuits in probate court upon a bondand authorize the recovery of "all damages caused by . . . neglect ormaladministration." Mass. Gen. Laws. Ann. ch. 205, § 31. If thosedamages include the tort recovery the plaintiff seeks here (such asnegligent and intentional infliction of emotional distress), and if shecould have combined all her claims in a single action (the lawyers havenot described for me Massachusetts probate procedures for presenting sucha claim), then claim preclusion would apply. After consulting thetreatises on Massachusetts probate procedures, see 1-2 T.H. Belknap,Newhall's Settlement of Estate and Fiduciary Law in Massachusetts (5thed. 1994 & Supp. 2002); S.M. Dunphy, Probate Law and Practice (2ded. 1997 & Supp. 2002), however, I have been unable to find any casesawarding tort damages in a suit upon a bond, and the lawyers havereferred me to none. One case suggests that "consequential damages" maybe available, Chase v. Faulkner, 307 Mass. 404, 30 N.E.2d 239, 241(Mass. 1940), but those damages were merely the legal fees and expensescaused by the guardian's failure to account, not tort damages.[fn2a] Thedefendants have made thoughtful and lawyerly arguments as to why tortdamages on a guardian's bond might be distinguished from other tortlawsuits, but I am left with the Massachusetts Supreme Court's broadlanguage and no rulings drawing the distinction they propose. As afederal judge applying state law, therefore, I decline to rule that theMassachusetts court would step back from its language and allow tortrecovery in a lawsuit on a bond. See Ryan v. Royal Ins. Co. of America,916 F.2d 731, 744 (1st Cir. 1990). The motion for rehearing is Denied. The schedule for motion practice on issue preclusion is amended asfollows: any motions shall be filed by March 26, 2003; all responses byApril 16, 2003; and any reply briefs by April 23, 2003. So Ordered.

2. One guardian was for the person, the other (in Maine, called aconservator, see 18-A M.R.S.A. § 1-201(6) (1998)) for the property ofher mother.

3. Siegemund also objected to the accounts filed in Suffolk CountyProbate and Family Court by the defendant Howe as the guardian of theproperty of Siegemund's mother; Siegemund's objections were stricken bythe probate court on February 13, 2001. Howe Mot. to Dismiss (Docket No.8).

4. The Amended Complaint also adds as plaintiffs Joan L. Siegemund onbehalf of the Estate of Rose Winston and the Estate of Rose Winston. RalfSiegemund, personal representative of the estate of Joan L. Siegemund,has been substituted as a plaintiff in this action due to Ms. Siegemund'sdeath.

5. All three defendants are lawyers and the plaintiffs have namedtheir law firms as well. For purposes of this motion. I treat thelaw firms the same as the individual defendants.

6. State law determines the effect of a prior state court judgment.See 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper.Federal Practice and Procedure § 4412, at 284-85 (2d ed. 2002).

7. According to the Commentary: The general rule of § 24 is largely predicated on the assumption that the jurisdiction in which the first judgment was rendered was one which put no formal barriers in the way of a litigant's presenting to a court in one action the entire claim including any theories of recovery or demands for relief that might have been available to him under applicable law. When such formal barriers in fact existed and were operative against a plaintiff in the first action, it is unfair to preclude him from a second action in which he can present those phases of the claim which he was disabled from presenting in the first.Restatement (Second) of Judgments § 26 cmt. c (1982); see also id.§ 25 cmt. f ("Preclusion is narrower when a procedural system in factdoes not permit the plaintiff to claim all possible remedies in oneaction. . . .").

8. Maine and Massachusetts state courts have not directly confrontedthe issue, but the language of their claim preclusion cases is consistentwith this approach. See, e.g., Lewis v. Maine Coast Artists, 770 A.2d 644,649 (Me. 2001) (describing one of three requirements for claim preclusionas whether "the matters presented for decision in the second actionwere, or might have been, litigated in the first. What was or could havebeen considered in the first action cannot be the basis of a subsequentaction.") (citations omitted); Henriksezn v. Cameron, 622 A.2d 1135,1141-42 (Me. 1993) (using similar language and concluding that divorcejudgment did not bar later lawsuit for tortious conduct between thespouses); accord Heacock v. Heacock, 402 Mass. 21, 520 N.E.2d 151, 153(1988) (denying claim preclusion as to the effect of a probate divorceand alimony decision in a later superior court tort case because "[t]heplaintiff could not have recovered damages for the tort in the divorceaction, as the Pro bate Court does not have jurisdiction to hear tortactions and award damages"); Feener v. New England Tel. & Tel. Co.,20 Mass. App. Ct. 166, 478 N.E.2d 1289, 1292 n. 6 (1985) (finding thatprobate court judgment did not create claim preclusion as to later tortaction and citing the Wright, Miller & Cooper language quoted in thetext above). First Circuit law is in accord. See, e.g., United States v.Cunan, 156 F.3d 110, 115 (1st Cir. 1998) (discussing why ordinarily claimpreclusion does not apply between criminal and civil proceedings (amongother things, the available relief is different, and both forms of reliefcannot be obtained in the same proceeding), but finding in the specificcase of property forfeiture that a dismissed civil proceeding forecloseda criminal proceeding seeking the identical relief (forfeiture ofspecific property)); Kale v. Combined Ins. Co. of America, 924 F.2d 1161,1167-68 (1st Cir. 1991) ("This jurisdictional competence exceptionpermits the maintenance in a second suit of a claim stemming from thecause of action previously sued upon `if a jurisdictional obstacle hasprecluded raising that issue in the first action.') . . . [I]t must beshown that the claim pressed in the second suit could not have beenasserted and resolved in the first suit by reason of limitations on thefirst court's jurisdiction." (quoting Pasterczyk v. Fair, 819 F.2d 12, 14(1st Cir. 1987)). On the other hand, issue preclusion can apply. SeeMutual Fire Inc. Co. v. Richardson, 640 A.2d 205, 208-09 (Me. 1994)(divorce proceeding determination of spouse's responsibility for firethat destroyed property was binding in later lawsuit by insurancecompany).

9. The defendants argue that probate courts have broad equity powers.The Massachusetts cases cited in footnote 8, however, are clear thatMassachusetts probate courts cannot award tort damages.

10. The Restatement suggests that if a party had the choice of a forumthat could have provided all relief, claim preclusion might then apply ifthat party voluntarily chose a forum with more limited jurisdiction.Restatement (Second) of Judgments § 24 cmt. g. at 204 (1982). Maineand Massachusetts courts appear not to have ruled on the issue and thedefendants have not argued, for instance, that the plaintiff Siegemundcould have pursued all her claims in Massachusetts superior court, whichhas concurrent jurisdiction with the probate courts over all cases inwhich equitable relief is sought concerning matters relative toguardianships. Mass. Gen. Laws Ann. ch. 215, § 6 (West 2002).

11. See also Maine Probate Law Revision Commission. Report of theCommission's Study and Recommendations Concerning Maine Probate Law app.at 34 (Oct. 1978) ("There are too many procedural differences to permit aprobate and civil proceeding to be combined so that a single judgmentresults."). (The probate court may conduct joint hearings, however, whenthe probate and civil proceedings involve a common question of law orfact. Me. R. Probate P. 42(a).)

12. See authorities cited supra footnotes 7 and 8 and accompanyingtext for the "single action" limitation.

13. See Marin v. Marin, 797 A.2d 1265, 1267 (Me. 2002) (probate courtdecision on guardianship does not create claim preclusion concerningparental rights in later divorce action).

14. I note that the defendants Shapland and Nagel did not argue thatthe plaintiffs failed to satisfy the elements of negligent andintentional infliction of emotional distress.

15. The defendant Nagel, the guardian of the person, filed a motion todismiss, or in the alternative, a motion for summary judgment. Becausethe defendant Nagel cites no record evidence in support of his statute oflimitations claim. I treat his motion as a motion to dismiss on thisissue. The defendant Howe, the guardian of the property, has moved onlyto dismiss the plaintiffs' claims.

16. The defendant Howe argues that because his entire activities asguardian were within the Commonwealth of Massachusetts, the applicablelimitations period is found under Massachusetts law (three years from thedate the cause of action accrued pursuant to Mass. Gen. Laws Ann. ch.260, § 2A). (Docket No. 8) The defendant Nagel does not reach thequestion of which state's law applies: instead he contends that theplaintiffs' claims are barred by any statute of limitations, whether Maineor Massachusetts. (Docket No. 17)

17. Borrowing statutes, enacted by states to prevent forum shopping,"enable the forum to borrow and use the statute of limitations of anotherstate in determining the timeliness of an action." Hossler v. Barry,403 A.2d 762, 765 (Me. 1979).

18. "[I]f an account is properly allowed after full notice, itsubsumes all prior accounts." 2 Thomas H. Belknap, Newhall's Settlementof Estates and Fiduciary Laws in Massachusetts § 29:15, at 234 (5thed. 1994).

19. All the claims against Howe and his law firm are based upon hisalleged (mis)management of the deceased's assets. Am. Compl. ¶ 94.The plaintiffs also characterize their claims this way. Pls.' Resp. Mot.Dismiss (Docket No. 19) ("The facts alleged in the Complaint aresufficient to establish individual misconduct with respect to thedepletion of assets. ").

20. Stephen Howe, on behalf of himself and his law firm Dane &Howe LLP, moved to reconsider the Magistrate's recommended decision.(Docket No. 56) The motion was properly served on all parties andexecuted by the defendant Howe on behalf of himself but not by counsel ofrecord for the law firm. Because I see no need to treat the defendant lawfirm any different from the defendant Howe individually, I disregard thelaw firm's failure to comply with this formal requirement.

21. Although the Magistrate Judge noted the possibility that Maine lawmight apply to the claims against the defendant Howe, I see no basis forconcluding that it does. The plaintiffs allege that the defendant Howeimproperly managed the estate's assets located in Massachusetts.Construing liberally the allegations in the complaint, the only conductthat the plaintiffs allege may have taken place in Maine is Howe'sallegedly improper authorization of the cremation of the deceased'sremains. Am. Compl. ¶ 42. Since there is no fraudulent concealmentwith respect to this allegation, however, any claim of negligence againstthe defendant Howe for such action is barred by the statute oflimitations.

22. In light of this ruling, I do not reach the defendant Howe'sargument that the plaintiff Siegemund has no standing to sue on behalf ofthe estate.[fn1a] Accord Restatement (Second) of Judgments § 25 cmt. f (1982)(emphasis added): "Preclusion is narrower when a procedural system infact does not permit the plaintiff to claim all possible remedies in oneaction."[fn2a] Another case mentioning damages refers to the availability of"special damages." Chapin v. Waters, 110 Mass. 195, 199 (1872). I cannottell from the case in what sense the court is using that term.

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