Opinion
No. 12–P–1287.
2013-08-29
Steven SURABIAN v. Pauline BILLINGS, individually and as administratrix, & another.
By the Court (KAFKER, GREEN & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The pro se plaintiff brought what is in essence an action for tortious conversion against Pauline and Mark Billings, individually, and against Pauline Billings, as administratrix of the estate of Stephanie LaFlash–Surabian, the late daughter of the plaintiff and the defendant Pauline Billings. Applying a three-year statute of limitations with respect to the claim against the Billingses individually and a one-year statute of limitations with respect to the claims against Pauline Billings as administratrix, the motion judge concluded that all the plaintiff's claims were barred by the applicable statutes of limitations and granted the defendants' motion to dismiss. The plaintiff now appeals.
This lawsuit was filed on November 22, 2011, three years and forty days after the death of the plaintiff's daughter, and the question of precisely when the cause of action accrued is central to our determination whether the statutes of limitations had run by the time the complaint was filed. Conversion occurs when a defendant “intentionally or wrongfully exercise[d] acts of ownership, control or dominion over personal property to which he has no right of possession at the time.” Bleicken v. Stark, 61 Mass.App.Ct. 619, 622 n. 2 (2004), quoting from Abington Natl. Bank v. Ashwood Homes, Inc., 19 Mass.App.Ct. 503, 507 (1985). When a defendant's possession is not wrongful at its inception, conversion occurs where there is a demand and refusal. See Atlantic Fin. Corp. v. Galvam, 311 Mass. 49, 50–51 (1942); Abington Natl. Bank v. Ashwood Homes, Inc., supra at 506–507; Restatement (Second) of Torts § 237 (1965).
The complaint alleges that the defendants had property of the plaintiff that had been in the possession of his daughter at the time of her death and that the defendants would not return it to him. The motion judge concluded that the plaintiff had been aware of his cause of action for over three years prior to filing the complaint. He did so in reliance on the statement in the complaint that “[p]laintiff ... has been trying to get possession from the estate of Stephanie ever since her death on October 13, 2008.”
We think that this language in the complaint is too slender a reed to support the conclusion of the motion judge. The complaint does not state that any demand or refusal took place on the date of Stephanie's death or even shortly thereafter. On a motion to dismiss, the complaint must be read in the light most favorable to the plaintiff, and all reasonable inferences must be drawn in his favor. Read fairly, the pro se plaintiff's assertion that he had been “trying to get possession” of his belongings since a particular time might mean, for example, no more than that, beginning at around that time, he asked his attorney to help him retrieve them. Indeed, the complaint also alleges that “[i]t has become apparent on November 22, 2011 that Pauline Billings as Administratrix and Pauline and Mark Billings will not without court action return the Plaintiff's property.” At least arguably, the complaint could be read to allege that the defendants' refusal did not occur until that date, the very date of filing. In any event, nothing in the complaint asserts with sufficient clarity that any cause of action for conversion had accrued on the date of the daughter's death. As a consequence, dismissal with respect to the Billingses in their individual capacities must be reversed.
While our decision rests on the language of the complaint itself, we note that, at the hearing, letters from the plaintiff's attorney to the attorney for the defendants were submitted to the court that might be read to suggest that the return of the plaintiff's alleged property was not sought from the defendants until sometime in 2009.
The dismissal of the claim against the estate, however, is affirmed in light of the plaintiff's representation that he demanded what he alleges is his property and was refused it in 2009. The plaintiff contends that even if more than one year passed between the date on which the cause of action for conversion against the estate accrued and the date on which the complaint was filed, dismissal on statute of limitations grounds is impermissible since, although none of the property alleged to belong to the plaintiff was listed as part of the estate in the voluntary administration statement, the Billingses might now assert, in defense of the claims against them individually, that any such property was, in fact, part of the estate. The short answer to this contention, which may turn out to be relevant on remand, is that, at least until now, the Billingses have made no such claim. Only if they do so would a claim arise that the estate engaged in wrongful conduct that might have deprived the plaintiff of his alleged property. In such a circumstance, the statute of limitations would be no bar to the amendment of the plaintiff's complaint, or to the institution of a new action, to assert a claim against the administratrix. See Graveline v. Baybank Valley Trust Co., 19 Mass.App.Ct. 253, 254–255 (1985) (analyzing discovery rule for tolling of statute of limitations for tort claims).
The defendants' request for attorneys' fees is denied.
That portion of the judgment that dismisses the complaint against Mark Billings and Pauline Billings, individually, is reversed. The remaining portion of the judgment is affirmed.
So ordered.