Siegemund v. Shapland, CIV. 01-277-P-H.

• Decision Date: 24 February 2003
• Docket Number: No. CIV. 01-277-P-H.,CIV. 01-277-P-H.
• Parties: Ralf SIEGEMUND, Special Administrator for the Estate of Joan L. Siegemund, et al., Plaintiffs v. Peter SHAPLAND, et al., Defendants
• Court: U.S. District Court — District of Maine

Page 1

247 F.Supp.2d 1

Ralf SIEGEMUND, Special Administrator for the Estate of Joan L. Siegemund, et al., Plaintiffs v. Peter SHAPLAND, et al., Defendants

No. CIV. 01-277-P-H.

United States District Court, D. Maine.

February 24, 2003.

Order Denying Reconsideration March 5, 2003.

Thomas F. Hallett, Esq., Portland, ME, for Ralph Siegemund, Special Administrator for the Estate of Joan L. Siegemund, Ralf Siegemund, plaintiffs.

John S. Whitman, Esq., Richardson, Whitman, Large & Badger, Portland, ME, Stephen Howe, Esq., Dane & Howe, Boston, MA, Marsha Weeks Traill, Esq., Gorham, Peter J. Detroy, III, Esq., Russell Pierce, Esq., Norman, Hanson & Detroy, Portland, ME, for Peter Shapland, Peabody & Arnold LLP, Stephen Howe, Dane & Howe, IRA Nagel, Greenbaum Nagel Fisher & Hamelburg, defendants.

AMENDED DECISION AND ORDER ON MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT¹

HORNBY, Chief Judge.

From 1987 to 1993, Joan Siegemund actively and aggressively challenged the activities of two probate court-appointed guardians² for her aged mother. Siegemund sought their removal, objected to their requests for approvals of sales of property, medical treatment and living circumstances, and made various inflammatory accusations, all of this conduct taking place in the probate courts of Massachusetts and Maine. (The guardians were appointed in Massachusetts where her mother first lived and kept her assets; later the personal guardian approved the mother's move with a caregiver to Machias, Maine.) Siegemund was always unsuccessful. Her mother, Dr. Rose Winston, died in 1993. In 2001, Siegemund filed this lawsuit seeking compensatory and punitive damages against the personal representative of her mother's estate for various torts (including breach of fiduciary duty; negligence; intentional and negligent infliction of emotional distress; breach of state unfair trade practices and consumer protection laws).³ In 2002, the personal representative removed the case to this Court on diversity grounds and Siegemund amended the complaint to add as defendants the two guardians.⁴ All the defendants⁵ have moved to dismiss or for summary judgment. Peter Shapland, the personal representative, and Peabody & Arnold, LLP, have moved for summary judgment on the basis that the plaintiffs' claims are barred by res judicata and the plaintiff Siegemund's own failure to sue the guardians. Stephen Howe, the guardian of the property, and Dane & Howe have moved to dismiss the complaint on the grounds that the plaintiffs' claims are barred by the statute of limitations and a Massachusetts probate statute. Ira Nagel, the guardian of the person, and Greenbaum, Nagel, Fisher and Hamelburg have moved to dismiss or, in the alternative, for summary judgment on the basis that the plaintiffs' claims are barred by res judicata and the statute of limitations. The Magistrate Judge made a Recommended Decision on September 26, 2002. After full briefing and oral argument, I decline to accept the Recommended Decision.

I. RES JUDICATA

Maine, Massachusetts and federal law recognize two branches of res judicata: claim preclusion and issue preclusion (the latter sometimes called collateral estoppel). See, e.g., Marin v. Marin, 797 A.2d 1265, 1267 (Me.2002). The parties agreed at oral argument that the substance of the law is the same for all three jurisdictions, although the respective courts may use different terminology. For ease of discussion, I will use the Maine terms and primarily Maine cases.⁶

Claim preclusion is the broader of the two branches. It bars later litigation of claims the plaintiff brought or could have brought. Issue preclusion also bars later litigation, but only of the particular factual issues 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 plaintiffs had unhelpfully argued that probate court judgments never produce res judicata effects, an incorrect assertion; clearly the issue preclusion branch of res judicata can apply to issues resolved in probate court proceedings. Button v. Peoples Heritage Sav. Bank, 666 A.2d 120, 122-23 (Me.1995). But the plaintiffs are correct in pointing out that probate courts in both Maine and Massachusetts are courts of limited jurisdiction and limited powers. Not every claim or request for relief available in a court of general jurisdiction can be asserted in a Maine or Massachusetts probate court. This limitation makes claim preclusion more complex. "[Generally implicit in the rules of res judicata are several important assumptions. It is assumed that the rendering court and the recognition court are both courts of general jurisdiction, that the two courts have identical or substantially similar rules of procedure, and that they are, so to speak, of equal juridical dignity." Restatement (Second) of Judgments, ch. 6, Introductory Note, at 263 (1982). Where this premise is not satisfied, a "limitation on merger applies where the rendering forum lacked authority to award relief on particular grounds or of a particular type." Id. at 264. The Restatement (Second) of Judgments explicitly states 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 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.

Restatement (Second) of Judgments § 26(1)(c);⁷ accord 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4412, at 285 (2d ed. 2002) ("Claim preclusion is readily denied when the remedies sought in the second action could not have been sought in the first action, so long as there was good reason to maintain the first action in a court or in a form of proceeding that could not afford full relief.").⁸

Under Massachusetts law, probate courts do not entertain tort lawsuits or award common law damages for torts.⁹ Therefore, the plaintiff Siegemund was unable to claim the relief she seeks here in the Massachusetts probate court.¹⁰

In Maine, probate courts currently have the authority to hear tort claims 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 was apparent in the early 1990s when Siegemund was litigating in Maine probate court.) The Maine Rules of Probate Procedure prescribe two types of actions that may be brought in the probate courts: (1) actions within the exclusive 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 not consolidate proceedings, however, unless they are all "probate" or all "civil." Me. R. Probate P. 42(a).¹¹ Under Maine law, the issues that the plaintiff Siegemund previously pursued concerning the actions of her mother's guardian were within the exclusive jurisdiction of the probate court. 18-A M.R.S.A. §§ 5-102 (exclusive jurisdiction over guardianship), 5-402 (same for conservatorship of property except as to claims against the protected person herself or her estate or her property). By contrast, her tort claims were civil; therefore they could not be consolidated into the probate proceeding and be pursued in a "single action." ¹²

For these reasons, I conclude that claim preclusion arising out of the probate proceedings is unavailable as an affirmative defense,¹³ and I REJECT that portion of the Magistrate Judge's Recommended Decision.¹⁴

Issue preclusion, on the other hand, may be available as to facts established in the probate courts. The lawyers concede that the motion was not presented on that basis and, although one party finally raised the argument in a reply brief, the Magistrate Judge did not apply issue preclusion analysis in his Recommended Decision. Because issue preclusion may narrow some of the questions presented in this lawsuit, I will allow motion practice as follows: any motions shall be filed by February 7, 2003; all responses by February 28, 2003; and any reply briefs by March 7, 2003.

II. RIGHT TO SUE THE GUARDIANS

The personal representative argues that the lawsuit against him (and his law firm) on behalf of the estate should be dismissed for an additional and independent reason, namely, that under a Massachusetts statute the plaintiff Siegemund was entitled to sue the two guardians herself on behalf of the estate. Mass. Gen. Laws Ann. ch. 230, § 5 (West 2002). But by definition the personal representative has a fiduciary obligation to the estate to preserve its assets. If he violates that obligation by failing to sue on a legitimate claim (as is alleged here), the estate has a cause of action. Although an heir or legatee might sue instead under the Massachusetts statute, there is no requirement that an heir or legatee do so, and there is probably any number of reasons why an heir or legatee might not initiate such a lawsuit. Failure to do so may ultimately be a partial affirmative defense of failure reasonably to mitigate damages, but it hardly destroys the cause of action for the personal representative's breach of fiduciary obligation. Nothing in the language of the statute or Massachusetts caselaw suggests that this provision was designed to let the personal representative off the hook; instead, the statute simply provides an additional remedy to an heir or legatee. Because I conclude that it is not grounds for dismissal under Massachusetts law, I do not reach the plaintiffs' alternative argument that...