RICHARD ABRAHAMSON vs. ESTATE OF JOHN LeBOLD.

SULLIVAN, J. The plaintiff, Richard Abrahamson, appeals from a judgment dismissing his complaint because it was not filed within one year of the date of death of the decedent, John LeBold, as required by § 3-803(a) of the Massachusetts Uniform Probate Code (MUPC). See G. L. c. 190B, § 3-803(a). Abrahamson contends that his suit was timely filed pursuant to the savings statute, see G. L. c. 260 § 32, and, alternatively, he should have been granted equitable relief from the one-year limitations period in the MUPC. We conclude that G. L. c. 190B, § 3-803(a), governs, and G. L. c. 190B, § 3-803(e), bars the award of equitable relief in the trial court.

1. Procedural history. The following procedural history is undisputed on appeal. Abrahamson first filed suit against John LeBold in the Court of Common Pleas in Hamilton County, Ohio, in September of 2012. A little over two months later, on December 5, 2012, LeBold died. The Ohio trial court dismissed the suit

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for lack of personal jurisdiction on January 22, 2013, and Abrahamson appealed. While the appeal was pending, on February 13, 2013, LeBold's counsel filed a "Suggestion of Death" with the trial court. Abrahamson then successfully substituted LeBold's estate as the defendant in the Ohio appeal. On December 6, 2013, a year and a day after LeBold's death, the Ohio Court of Appeals affirmed the dismissal on the ground of lack of personal jurisdiction. Abrahamson did not file suit in Massachusetts until July 3, 2014, over a year and a half after LeBold's death. The estate filed a motion to dismiss the Massachusetts action, which was allowed. In a comprehensive and well-reasoned memorandum, the motion judge ruled that Abrahamson's claims were barred as a matter of law because LeBold had died more than a year before the plaintiff filed suit in Massachusetts, thereby exceeding the one-year period of limitations for actions against the personal representative of the decedent set forth in G. L. c. 190B, § 3-803(a). [Note 1] The judge concluded that, although G. L. c. 260, § 32, would otherwise "save" Abrahamson's action, [Note 2] the savings provision is inapplicable to a special statute which contains an inconsistent statute of limitations. See G. L. c. 260, § 19 ("If a special provision is otherwise made relative to the limitation of any action, any provision of this chapter inconsistent therewith shall not apply"). Relying on O'Brien v. Massachusetts Bay Transp. Authy., 405 Mass. 439, 442 (1989) (O'Brien), the motion judge concluded that the one-year limitations period in G. L. c. 190B, § 3-803(a), was a special statute, and that it was inconsistent with the three-,

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six-, and four-year limitations periods under G. L. c. 260 applicable to the tort, contract, and consumer protection claims at issue. The judge further concluded that dismissal was "consistent with the purpose" of G. L. c. 190B, § 3-803(a), which, he found, "is to expedite the settlement of estates." We agree.

2. Statutory construction. Abrahamson contends that G. L. c. 260, § 32 (the savings statute), renders this suit timely -- a suit which, due to LeBold's death on December 5, 2012, would otherwise be time barred under the one-year limitations period in G. L. c. 190B, § 3-803(a).

Although heard as a motion to dismiss, see Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), the motion was converted to a motion for summary judgment by submission and consideration of matters outside the pleadings. [Note 3] We review a motion for summary judgment de novo and determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Caron v. Horace Mann Ins. Co., 466 Mass. 218, 221 (2013) (citation omitted).

Whether this case is governed by the statute of limitations requiring that suits against an estate be commenced within one year of death, see G. L. c. 190B, § 3-803(a), versus the one-year grace period from the date of judgment (in some specified cases) found in the savings statute, G. L. c. 260, § 32, turns on whether the statute of limitations under G. L. c. 260 and G. L. c. 190B are inconsistent. See G. L. c. 260, § 19. A so-called "special" statute, such as the shortened one-year statute of limitations for claims against an estate, is "inconsistent" within the meaning of G. L. c. 260, § 19, when the special statute of limitations is shorter than the statute of limitations found in G. L. c. 260. "[T]he inconsistency contemplated by the Legislature occurs where the length of the limitations period set forth in the special statute is different from the length of a limitations period set forth in G. L. c. 260." Maltz v. Smith Barney, Inc., 427 Mass. 560, 563 (1998), quoting from O'Brien, 405 Mass. at 442. Section 3-803(a) imposes a shorter statute of limitations than the three-, six-, and four-year

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limitations periods applicable to the tort, contract, and G. L. c. 93A claims for which the plaintiff brought suit. See G. L. c. 260, §§ 2, 2A, & 5A, respectively. [Note 4] As a result, the one-year limitations period in G. L. c. 190B, § 3-803(a), governs. See Maltz v. Smith Barney, Inc., supra at 563.

This conclusion is underscored by an examination of the divergent purposes of the two statutes, and the legislative history of the pertinent probate statute. The purpose of G. L. c. 260, § 32, is "to relieve a person who, in the exercise of due diligence, within the time limited by the general statute of limitations, has attempted to enforce a claim by suit, and has failed in such attempt by reason of some matter of form, which can be remedied in a new proceeding, and which does not affect the merits of his case." Cannonball Fund, Ltd. v. Dutchess Capital Mgmt., LLC, 84 Mass. App. Ct. 75, 84-85 (2013), quoting from Cumming v. Jacobs, 130 Mass. 419, 421 (1881). "The provisions of G. L. c. 260, § 32, are to be construed liberally, in the interest of determining the parties' rights on the merits." Boutiette v. Dickinson, 54 Mass. App. Ct. 817, 818 (2002).

By contrast, the statute of limitations contained in the MUPC is designed to prevent the prolongation of litigation that G. L. c. 260, § 32, permits. "The purpose of the [probate] statute is to expedite the settlement of estates." Gates v. Reilly, 453 Mass. 460, 466 (2009). See New England Trust Co. v. Spaulding, 310 Mass. 424, 429 (1941). [Note 5] Between 1852 and 2008, the limitations period for suits against an estate was reduced from four years from the date of bond to two years from the date of bond, and finally to one year from the date of death. [Note 6] "The legislative intent

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to impose a shortened period for bringing claims of this nature is further evident from the [successive] amendment[s] . . . reducing the limitations period." Ford v. Commissioner of Correction, 27 Mass. App. Ct. 1127, 1129 (1989) (discussing amendments to G. L. c. 249, § 4).

The Legislature also added a savings clause to the probate statute for claims against an estate in 1855, where it remained for 153 years. See G. L. c. 197, § 12 (repealed in 2008). [Note 7] When Massachusetts finally adopted the Uniform Probate Code (model code) in 2008, repealing G. L. c. 197 in its entirety, the Legislature retained the one-year limitations period for suits against an estate's personal representative, see G. L. c. 190B, § 3-803(a), a limitations period which by that point also had been adopted by the drafters of the model code. [Note 8] The savings clause formerly contained in G. L. c. 197, § 12, did not appear in the model code, and was not retained in the MUPC. See G. L. c. 190B, § 3-803. "Where the Legislature has deleted such language, apparently purposefully, the current version of the statute cannot be interpreted to include the rejected requirement." Ellis v. Department

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of Industrial Accs., 463 Mass. 541, 557 (2012), quoting from Kenniston v. Department of Youth Servs., 453 Mass. 179, 185 (2009).

Thus, the legislative purposes of G. L. c. 260, § 32, and G. L. c. 190B, § 3-803(a), are in conflict. While G. L. c. 260, § 32, affords the diligent litigant additional time to file a claim, G. L. c. 190B, § 3-803(a), imposes a bar designed to marshal claims and close estates. Moreover, the differences between the two statutes of limitation are plainly the product of legislative design. This case is therefore distinguishable from O'Brien, supra, upon which Abrahamson relies. O'Brien held that there was no inconsistency between the (then) two-year statute of limitations for tort claims under G. L. c. 260, and a special statute providing for a two-year statute of limitations for tort claims against the Massachusetts Bay Transportation Authority. In O'Brien, the time periods were identical, and there was no inconsistency in legislative purpose or design. 405 Mass. at 442. See Carroll v. Worcester, 42 Mass. App. Ct. 628, 630 (1997) (special provision and G. L. c. 260 tort claim limitations periods were both three years).

It is undisputed that Abrahamson filed suit against the estate in Massachusetts more than one year after LeBold's death. His claims are time barred by the one-year limitations period in G. L. c. 190B, 3-803(a), as a matter of law.

3. Equitable relief. Abrahamson seeks equitable relief from the one-year statute of limitations because he provided the estate with actual notice when, in the Ohio lawsuit, he substituted the defendant for LeBold. However, G. L. c. 190B, § 3-803(e), provides that only the Supreme Judicial Court may grant a complaint in equity filed by a creditor "whose claim has not been prosecuted within the time limited by subsections (a) or (b) . . . ." As a result, the request for equitable relief was properly denied. [Note 9]

Judgment affirmed.