Babco Industries, Inc. v. New England Merchants Nat. Bank
| Decision Date | 04 October 1978 |
| Citation | 6 Mass.App.Ct. 929,380 N.E.2d 1327 |
| Parties | BABCO INDUSTRIES, INC., et al. v. NEW ENGLAND MERCHANTS NATIONAL BANK et al. |
| Court | Appeals Court of Massachusetts |
J. Owen Todd, Boston (James L. Quarles, III, Boston, with him), for New England Merchants Nat. Bank.
Will J. Bangs, Boston (Jeffrey N. Drummond, Boston, with him), for John Hancock Mut. Life Ins. Co.
Richard K. Donahue, Lowell, for plaintiffs, submitted a brief.
Before HALE, C. J., and ARMSTRONG and BROWN, JJ.
RESCRIPT.
1. A motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), lies against a complaint which shows on its face that the statute of limitations has run prior to the date the action was commenced. See 2A Moore, Federal Practice par. 12.10 (2nd ed. 1975); 5 Wright & Miller, Federal Practice and Procedure § 1357, at 608 (1969). 2. Counts I and VII clearly sounded in tort and were thus barred by the two-year statute of limitations found in G.L. c. 260, § 2A, as in effect prior to St.1973, c. 777, § 1 (effective January 1, 1974). No argument is made to the contrary. 3. Accepting the plaintiffs' characterization of counts II, III and IV as alleging in "essence . . . that the defendants, as controlling parties, owed a fiduciary duty to the corporate plaintiff and the shareholders," we agree with the judges who dismissed the counts that the alleged breaches of that duty (if it existed) sounded in tort rather than in contract. See Shore v. Cornell-Dubilier Elec. Corp., 33 F.R.D. 5, 6 (D.Mass.1963); Moseley v. Briggs Realty Co., 320 Mass. 278, 282, 69 N.E.2d 7 (1946). Wilkes v. Springside Nursing Home, Inc., --- Mass. --- A, 353 N.E.2d 657 (1976), suggests nothing to the contrary, the underlying claim in that declaratory judgment action having been clearly contractual in nature. It follows that counts II, III and IV were also properly dismissed.
4. Count VI recasts the allegations of counts I through V as violations of G.L. c. 93A, § 2, actionable under G.L. c. 93A, § 11 (), and subject to the four year statute of limitations appearing in G.L. c. 260, § 5A (inserted by St.1975, c. 432, § 2). As all of the actions of the defendants which might arguably be thought violations of G.L. c. 93A occurred prior to October, 1972, the plaintiffs' contention that count VI is not barred by the statute of limitations turns on three assumptions: (1) that G.L. c. 93A, § 11, is procedural in nature, rather than substantive, and thus provides a remedy for unfair and deceptive practices which occurred prior to its effective date; (2) that G.L. c. 260, § 5A, notwithstanding its introductory language suggesting that the four year limitations period it establishes may be intended to apply only to consumer actions, extends as well to actions brought under G.L. c. 93A, § 11; and (3) that the running of the limitations period was tolled by virtue of duress exercised by the defendants against the plaintiffs until July 25, 1973, when the corporation's debts to the defendants were discharged. We need not rule on the first and second assumptions, as the third is not made out on the facts stated in the complaint. It is possible to imagine circumstances in which duress might toll the statute (see Annot., 121 A.L.R. 1294 (1939)), but the most that appears on the allegations in the present complaint is an unwillingness to initiate legal proceedings against creditors who are forbearing to exercise their rights on default. See Mass.R.Civ.P. 9(b), 365 Mass. 751 (1974). As the then applicable two year tort statute of limitations (G.L. c. 260, § 2A) was not tolled, the limitations period expired well before July 15, 1975, when the four year statute of limitations (G.L. c. 260, § 5A) became effective. The new statute did "not serve to revive actions barred before its effective date." Baldassari v. Public Fin. Trust, --- Mass ---, --- B, 337 N.E.2d 701, 708 (1975). Count VI was therefore properly dismissed.
5. The judge did not err in concluding that any cause of action which may be suggested under 42 U.S.C. § 1985 (...
To continue reading
Request your trial
-
Mack v. American Fletcher Nat. Bank and Trust Co.
...(1986), 1st Cir., 797 F.2d 3 (duty of majority shareholder to minority shareholders); Babco Industries, Inc. v. New England Merchants National Bank (1978), 6 Mass.App. 929, 380 N.E.2d 1327 (corporate duties); Miller v. Magline, Inc. (1977), 76 Mich.App. 284, 256 N.W.2d 761; Warmka v. Hartla......
-
Jones v. Jones
...A.2d 315, 319 (Conn.App.Ct.1988), certif. den. 209 Conn. 819, 551 A.2d 755 (1988); Babco Industries, Inc., et al. v. New England Mer. Nat. Bank, 6 Mass.App. 929, 380 N.E.2d 1327, 1328 (Mass.App.Ct.1978); Baratta v. Kozlowski, 94 A.D.2d 454, 458-459, 464 N.Y.S.2d 803, 806 (2d Dep't 1983); Pa......
-
Baratta v. Kozlowski
...Co., 149 F.Supp. 790, affd. 252 F.2d 441; Philco Corp. v. Radio Corp. of America, 186 F.Supp. 155; Babco Industries v. New England Merchants Nat. Bank, 6 Mass.App. 929, 380 N.E.2d 1327 ). Whether reluctance to recognize duress as a toll lies in the undesirability of a rule that turns on the......
-
Palandjian v. Pahlavi
...such exception may seem and even though the exception would be an equitable one."). In Babco Industries, Inc. v. New England Merchants Nat. Bank, 6 Mass.App. 929, 380 N.E.2d 1327 (1978), the court rejected the plaintiff's "duress exception" argument but stated in dictum, "It is possible to ......