ORDER ON THE DEPENDANTS IRA NAGEL'S AND GREENBAUM, NAGEL, FISHER & HAMELBURG'S MOTION FOR SUMMARY JUDGMENT
The issue on this motion for summary judgment is whether Maine'sstatute of limitations has been tolled on charges against the guardian ofa ward who died nine years before this lawsuit was filed. I conclude thatthe statute has run and the claims are barred.
From 1987 to 1993, Joan Siegemund challenged the activities of twoprobate court-appointed guardians1 of her aged mother, Dr. RoseWinston. In the probate courts of both Maine and Massachusetts, Siegemundfought each guardian's appointment, objected to their requests to sellproperty and sought toPage 2have them removed. She was always unsuccessful. Dr. Winston died in1993. In 2001, Siegemund filed this lawsuit against Peter Shapland, thepersonal representative of her mother's estate, for various torts. OnFebruary 21, 2002, she amended her complaint to join as defendants IraNagel, guardian of the person, Stephen Howe, guardian of the property,and their respective law firms.2 Both guardians and their law firmsfiled motions to dismiss. When Joan Siegemund died, her husband, RalfSiegemund, personal representative of her estate, was substituted asplaintiff. In a February 25, 2003, Order, I concluded that Siegemund'sclaims against Stephen Howe, guardian of the property, and his law firm,were barred because his final accountings had been allowed by aMassachusetts probate court.3 At that time, I denied personalguardian Nagel's motion to dismiss.
Discovery is now complete. Nagel and his law firm, Greenbaum, Nagel,Fisher and Hamelburg, have moved for summary judgment on all ofSiegemund's claims.4 Those claims are breach of fiduciary duty,negligence, and negligent and intentional infliction of emotionaldistress.5 Nagel has advanced severalPage 3arguments as to why Siegemund's claims against him fail, includingthe statute of limitations, laches, issue preclusion, and lack ofstanding or capacity. I conclude that all of Siegemund's claims againstNagel are barred by Maine's statute of limitations. Accordingly, IGRANT Nagel's motion for summary judgment.6
In the February 25, 2003 Order, I concluded that Maine's statute oflimitations applied to all of Siegemund's claims except for her claimthat Nagel engaged in unfair trade practices in violation of Chapter 93Aof the Massachusetts General Law. Order at 9. Siegemund is no longerpursuing the unfair trade practices claim. Opp'n Mot. at 16. Therefore,Maine's statute of limitations applies to all of Siegemund's remainingclaims. Under Maine law, "[a]ll civil actions shall be commenced within 6years after the cause of action accrues. . . . " 14 M.R.S.A. §752 (2003).
Each of Siegemund's claims against Nagel arises out of decisions thathe made as personal guardian regarding Dr. Winston's care. Thus, all ofSiegemund's causes of action against Nagel accrued, at the latest, in1993 when Dr. Winston died and Shapland was appointed as personalrepresentative.7Page 4Unless there is tolling, the statute of limitations ran onSiegemund's claims against Nagel in 1999, three years before she filedthis lawsuit against him. Siegemund advances several bases for tollingthe statute of limitations. I will address each in turn.
Causes of action that accrue while a person is mentally ill are tolleduntil the "disability is removed." 14 M.R.S.A. § 853. Dr. Winston wassuffering from mental illness when she died. Siegemund argues, therefore,that the disability was never "removed" and that the statute oflimitations remains tolled. This tolling provision, however, clearlyapplies only to living people and was not designed to toll the statute oflimitations in perpetuity.
(B) Absence from, the State
Siegemund argues that the statute of limitations has not run becauseNagel resides in Massachusetts, not Maine. 14 M.R.S.A. § 866provides: If a person is out of the State when a cause of action accrues against him, the action may be commenced within the time limited therefor after he comes into the State. If a person is absent from and resides out of the State, after a cause of action has accrued against him, the time of his absence from the State shall not be taken as a part of the time limited for the commencement of the action.The purpose of this provision is to prevent potential defendants fromescapingPage 5lawsuits by moving or remaining out of state while the statute oflimitations runs. See Connolly v. Serunian, 21 A.2d 830 (Me.1941) ("Doubtless the mischief intended to be provided for [by section866] was, that the statute would in certain cases commence running, whilethe holders of contracts could not commence suits upon them, or could notdo it without being subjected to the inconvenience of doing it in anotherState."). The Law Court has addressed, but not decided, whether thisprovision applies in cases where the defendant's whereabouts are known,such that he or she is clearly amenable to service under Maine's"long-arm" statute. In Patten v. Milam, 480 A.2d 774, 777(Me. 1984), the court recognized that "there is a substantial body of lawin other jurisdictions which supports the proposition thatnotwithstanding a defendant's absence from the state, the limitationsperiod is not tolled if he remains amenable to service of process undermodern `long-arm' extensions of in personam jurisdiction." InPatten, however, the record did not show that the plaintiffknew where the defendant was residing. The court concluded, therefore,that "the bare possibility of service by publication without the means ofproviding personal notification to the defendant [did] not render thetolling provision inapplicable." Id. The court expresslyreserved the question whether the tolling provision would apply if otherforms of service had been available. Id.
In this case, there is no question that Nagel was amenable to serviceofPage 6process by means more effective than publication. Many ofSiegemund's allegations concern Nagel's conduct as guardian during thetime that Dr. Winston was a Maine resident. Maine's long-arm statuteprovides that a person who commits a tortious act in Maine or who causes"the consequences of a tortious act to occur" in Maine submits himself tothe jurisdiction of Maine courts. Id.
§ 704-A(2)(B). Nagel traveled to Maine on several occasions, metwith and discussed Dr. Winston's care with her primary care physicianeach time he visited, and ultimately determined that Dr. Winston shouldstay in Maine under the care of Audrey Pitman. Pls.' Response to Defs.'SMF ¶¶ 30, 34, 35. Thus, some of Nagel's decisions regarding Dr.Winston's care occurred while Nagel was in Maine. Even if Nagel's allegedbreaches of fiduciary duty and other tortious acts occurred while Nagelwas in Massachusetts, the consequences of those acts occurred in Maine,where the ward was living. Nagel was, therefore, amenable to personaljurisdiction under Maine's long-arm statute and there is ample evidencethat Siegemund knew where he was.8 See Patten, 480 A.2d at777.
The majority rule is that tolling provisions similar to Maine's areinapplicable where the party raising the statute of limitations defenseis amenable to personal jurisdiction. See Kenneth J. Rampino,Annotation, Tolling of Statute of Limitations During Absence fromState as Affected bu Fact that PartyPage 7Claiming Benefit of Limitations Remained Subject to Serviceduring Absence or Nonresidence, 55 A.L.R.3d 1158 (2002). Four yearsbefore Pattern, the Law Court seemed to follow this majorityrule when it concluded that a foreign corporation over which a Mainecourt could assert jurisdiction was not "absent" for the purposes of thetolling provision. Willey v. Brown, 390 A.2d 1039, 1042-43 (Me.1978). To the extent that Maine law on this issue is unclear, I concludethat Maine would follow the majority rule and decline to apply thetolling provision in a case such as this, where the defendant served asguardian of a Maine resident and was amenable to personal service.Page 8
(C) Fraudulent Concealment
Finally, Siegemund argues that the statute of limitations was tolleddue to fraudulent concealment. In Maine, an action that is fraudulentlyconcealed by the defendant is timely if it is commenced within six yearsafter the person entitled to bring suit discovers the claim. 14 M.R.S.A.§ 859. To establish a claim of fraudulent concealment, the plaintiffmust show: "(1) that defendants actively concealed material facts from[plaintiff] and that [plaintiff] relied on their acts and statements toher detriment; or (2) that a special relationship existed between theparties that imposed a duty to disclose the cause of action, and thefailure of defendants to honor that duty." Harkness v.Fitzgerald, 701 A.2d 370, 372 (Me. 1997). A fiduciary relationship,such as that of guardian to ward, is a "special relationship." Brawnv. Oral Surgery Assoc., 819 A.2d 1014, 1026 (Me. 2003).9
"When a plaintiff contends a genuine issue of material fact concerningthe defendant's fraudulent concealment has been generated, the courtassesses the facts against the elements of fraud. . . . "Brawn, 819 A.2d at 1026. The elements of fraud are: "(1) themaking of a false representation; (2) of a material fact; (3) withknowledge of its falsity . . .; (4) for the purposes of inducing anotherto act upon it; and (5) justifiable and detrimental reliance by theother." Id. WhenPage 9there is a "special relationship," failure to disclose mayconstitute the supplying of false information. Id.
Siegemund alleges that Nagel concealed or prevented the Siegemunds fromobtaining various medical records of Dr. Winston, P1s.' Statement ofAdditional Facts ¶¶ 121, 123, 142, 147, 156, and forbade Dr. Winston'sdoctors to speak to the Siegemunds. Id. ¶ 118.10 Asrecord support for these allegations, Siegemund cites his ownaffidavit,11 where he states: • "Nagel in every way obstructed us from getting the medical record of Rose Winston at any time, but particularly for the period of time Dr. Rose Winston was in Maine." Ralf Siegemund Aff. ¶ 22. • "On information and belief, Nagel has prevented Joan [Siegemund] from obtaining medical records. . . . " Id. ¶ 8.
• "To the best of my knowledge, we had no medical records from the time after the Bowser Order and to the death of Rose Winston. On information and belief, Nagel actually prevented us from getting said records." Id. ¶ 13.Page 10
• "On information and belief, [Rose's treating physician] was forbidden by Nagel to talk to Joan [Siegemund] and myself when we visited his office in 1992." Id. ¶ 19.Nagel has filed a motion to strike each of these paragraphs on theground that they are not supported by personal knowledge as required byFederal Rule of Civil Procedure 56(e). (DocketItem #164). "It is apodictic that an affidavit . . . made upon informationand belief . . . does not comply with Rule 56(e)." Sheinkopf v. Stone,927 F.2d 1259, 1271 (1st Cir. 1991). Even statements thatpurport to be based on personal knowledge may fail to satisfy Rule 56(e)if they are "too amorphous." Id. (citing 11 James Wm. Moore, etal., Moore's Federal Practice ¶ 56.14[d] (3d ed. 1997)("The affidavit, in addition to presenting admissible evidence, must besufficiently specific to support the affiant's position.")). Paragraphs8, 13, and 19 are based upon Ralf Siegemund's "information and belief."Paragraph 22 purports to be based upon personal knowledge, but refers toundefined events and lacks the specificity required to satisfyRule 56(e). Accordingly, Nagel's motion to strike is GRANTED withrespect to paragraphs 8, 13, 19, and 22 of the Affidavit.12
Nagel admits that he denied many of Joan Siegemund's requests for hermother's medical records. Pls.' Response to Defs.' SMF ¶ 86. However,thePage 11withholding of information alone does not amount to fraudulentconcealment. For concealment or failure to disclose to be fraudulent, theinformation withheld must be material. Brawn, 819A.2d at 1026. In the context of fraudulent concealment tolling, thewithheld information must comprise the facts upon which the lawsuit, atleast in part, is based. See 14 M.R.S.A. § 859 (tollingavailable when a person liable conceals "the cause [of action]"). Nowheredoes Siegemund identify which records were withheld or what specificinformation those records contained that was material to a cause ofaction against Nagel.13 Moreover, Siegemund has acknowledged that heis not advancing a claim of medical impropriety. Opp'n Mot. at 6.Siegemund simply has not shown what the withheld medical recordscontained that prevented timely filing of this lawsuit against Nagel.Siegemund, therefore, has not presented sufficient evidence to create atrialworthy issue of fraudulent concealment. I conclude that the tollingprovision does not apply.
The statute of limitations ran on all of Siegemund's claims againstNagel inPage 121999, three years before Siegemund filed this lawsuit. BecauseSiegemund does not advance any independent claims against Nagel's lawfirm, I assume that the complaint against the law firm is predicated on avicarious liability theory and therefore dependent upon Nagel'sliability. Nagel's and the law firm's motion for summary judgment isGRANTED.
1. One guardian was for Dr. Winston (the person); the other was forher property.
2. The Amended Complaint also added as plaintiffs Joan L. Siegemundon behalf of the Estate of Rose Winston and the Estate of RoseWinston.
3. Mass. Gen. Laws Ann. Ch. 206, § 22 provides that asatisfactory accounting exonerates the accountant from liability unlessthe account is impeached for fraud or manifest error. By the time of myruling in February 2003, Siegemund's time for appeal from the finalaccounting had expired.
4. The Amended Complaint does not make any independent claimsagainst the law firm. Therefore, for the sake of brevity, I refer to themoving parties as "Nagel."
5. The Amended Complaint also alleges that Nagel violated Chapter93A of the Massachusetts General Law (unfair trade practices). Siegemundhas conceded, however, that this claim "does not survive." Opp'n Mot. at16.
6. By virtue of this decision, Nagel's Motion to Amend Answer toAmended Complaint (Docket Item # 162) and Motion to Strike and ExcludeOpinion Testimony of Calvin True, Esq., and Paul Adler, M.D. (Docket Item#111) are MOOT.
7. Siegemund suggests that the claims accrued no earlier than whenShapland was appointed as personal representative. Opp'n Mot. at 3. Dr.Winston died on March 18, 1993, and Shapland was appointed on May 7,1993. Pis.' SMF ¶¶ 2B, 7. Thus, regardless of whether Siegemund'sclaims accrued in March or in May, they accrued in 1993, nine yearsbefore Siegemund filed this lawsuit.
8. In the course of challenging Nagel's activities from 1987 to1989, Joan Siegemund served motions upon Ira Nagel at his law firm'saddress, and received correspondence bearing that address.E.g., Defs.' SMF, Exhibits N & V.
9. Because Nagel had a fiduciary relationship with Dr. Winston, hehad a duty to disclose to her any cause of action that she may have had.Siegemund does not allege, however, that Nagel concealed information fromDr. Winston, but rather that he concealed information from Joan and RalfSiegemund. Whether Nagel had a "special relationship" with theSiegemunds, giving rise to a duty to disclose, is questionable. Evenassuming the existence of such a relationship, however, Siegemund's claimof fraudulent concealment lacks evidentiary support.
10. Siegemund also states that the plaintiffs were unable tocommence discovery "[d]ue to the impounding of the Probate Court file."P1s.' Additional SMF ¶ 119. Because Siegemund does not attribute theimpounding of the file to Nagel, the statement is not relevant to theissue of Nagel's fraudulent concealment.
11. There are two Ralf Siegemund affidavits on record; one is datedNovember 21, 2003, the other is dated November 25, 2003. In his replystatement of material facts, Siegemund cites the November 25 affidavit.(Docket Item #135).
12. I have not considered any of the other paragraphs to which Nagelobjects in the motion to strike because they are not relevant to thestatute of limitations issue. Thus, the remainder of Nagel's motion isMOOT.
13. In his opposition motion, Siegemund says: "Although JoanSiegemund might engage in wild speculations, she could not actuallyassess the treatment of her mother. Absent medical or legal records, itwas impossible for Joan Siegemund to obtain sufficient information uponwhich to bring an action until after the statute of limitations ran."Opp'n Mot. at 5. Siegemund does not, however, identify what informationin those records eventually alerted him and his wife to the fact thatthey had a cause of action against Nagel. Moreover, the assertion thatJoan Siegemund was unable to assess the treatment of Dr. Winston withoutthe records is belied by the fact that Ms. Siegemund, without the benefitof the withheld records, challenged Nagel's activities on many of thesame grounds advanced in this lawsuit. See, e.g., Defs.' SMF¶¶ 56, 77.