Shulman v. Tosi (Lawyers Weekly No. 12-087-17)



NORFOLK, ss.                                                                      SUPERIOR COURT

                                                                                                CIVIL ACTION

  1. 16-01268-C







LINDA TOSI, personal representative[1]






In his complaint in this action, plaintiff Frederick I. Shulman claims damages from the estate of Velia N. Tosi (“the Estate”).  Shulman contends that his former employers, Velia Tosi (“Velia”)[2] and her husband, Carlos Tosi (“Carlos”),  promised to pay him a sum of money upon the last of them to die.  Shulman alleges that after Carlos and later Velia died, Linda Tosi (“Linda”), the executrix of the Velia’s Estate, refused to pay the money allegedly promised.

Shulman filed this action against Linda on October 7, 2016, one day shy of the one year anniversary of Velia’s death.  In it, Shulman alleges breach of contract, quantum meruit, and breach of the implied covenant of good faith and fair dealing.

Linda moves to dismiss under Mass. R. Civ. P. Rule 12(b)(6) for failure to state a claim, contending that this action is governed by a one-year statute of limitations contained in G. L. c. 190B, § 3-803(a) of the Massachusetts Uniform Probate Code, which requires a creditor of a deceased to file and serve an action within one year of a decedent’s death, and that Shulman did not file this action and serve her within that period.[3]  In response, Shulman argues that the one-year statute of limitations contained in § 3-803 does not apply because he is not a creditor of the Tosis but rather is a creditor of the Estate.

On May 23, 2017, the Court convened a hearing on Linda’s motions and requested, and received, post-hearing filings on May 26 and May 31, 2017.

In consideration of the parties’ memoranda of law and oral arguments, and for the reasons that follow, Linda’s motion is ALLOWED.


Because it is evaluating the legal sufficiency of a complaint pursuant to Mass. R. Civ. P. 12(b)(6), the Court will accept as true all factual allegations in the complaint and all reasonable inferences that may be drawn in the plaintiff’s favor. See, e.g., Berish v. Bornstein, 437 Mass. 252, 267 (2002); Nader v. Citron, 372 Mass. 96, 98 (1977).

Shulman began working with the Tosi family in 1966 as an assistant to Carlos, and later served as property manager for Tosi family real estate holdings.  Id. at ¶¶6-9.  In total, Shulman worked for Carlos and Velia for some 41 years, and a close, family-like relationship developed among Shulman, Carlos and Velia.  Id. at ¶13.

Shulman did not have any form of retirement plan with the Tosi family businesses.  Id. at ¶17.  At a party celebrating Shulman’s 25 years of employment with the Tosi family, Carlos told Shulman that he (Carlos) and Velia intended to compensate Shulman in the future for his many years of loyal and dedicated service.  Id. at ¶¶11-12.  On February 21, 2007, Carlos and Velia met with Shulman, at the request of the Tosis, at which time the Tosis told Shulman they would give him the sum of $ 650,000 as retirement compensation.  Id. at ¶¶13-16.  A few days after this meeting, Shulman, Carlos and Velia met at the Tosis’ home, at which time Carlos told Shulman that the agreement to compensate Shulman $ 650,000 would be reduced to writing.  Id. at ¶20.  By mutual agreement and understanding, Shulman was to retire on April 7, 2007, and the $ 650,000 in retirement compensation was to be paid upon the death of the last to survive of Carlos and Velia.  Id. at ¶¶18-19.  No writing was created memorializing these agreements.

Carlos died on January 24, 2011.  Id. at ¶4.  Velia died on October 8, 2015.  Id. at ¶5.  No provisions were made by the time of Velia’s death to pay the compensation allegedly promised to Shulman.  Id. at ¶23.  The Estate declined Shulman’s request to honor the alleged agreement. Id. at ¶24.

Shulman filed this action on October 7, 2016.    The return of service in this matter states that service was made on December 19, 2016.


To survive a motion to dismiss, a complaint must set forth the basis of the plaintiff’s entitlement to relief.  Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008), quoting Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-1965 (2007).  Linda contends that Shulman has failed to state a claim because G. L. c. 190B, § 3-803(a) governs, and bars, this action.  That section states:

Except as provided in this chapter, a personal representative shall not be held to answer to an action by a creditor of the deceased unless such action is commenced within 1 year after the date of the deceased and unless, before the expiration of such period, the process in such action has been served by delivery in hand upon such personal representative or service thereof accepted by him or a notice stating the name of the estate, the name and address of the creditor, the amount of the claim and the court in which the action has been brought has been filed with the register.


In response, Shulman does not contest that he failed to comply with the filing and service requirements of § 3-803. Instead, he argues that § 3-803 does not apply because he is not a creditor of the deceased, the Tosis, but rather is a creditor of the estate.  This is so, Shulman contends, because no obligation to pay him arose against the Tosis during their lifetimes, as their agreement with him was to pay Shulman only after the last of them died.  He thus became a creditor of the Estate upon Velia’s death.

Shulman’s argument is in error.  The obligation alleged by Shulman was established by the Tosis, not by the Estate.  Because the obligation was created by the Tosis, Shulman is a “creditor of the deceased” – that is, a “claimant holding obligations that arose while the decedent was alive” – as opposed to a creditor of the estate, which holds obligations that “arise after death and are enforceable only against the decedent’s personal representative” such as “taxes on income received by the estate after the decedent’s death, taxes on property held by the estate, and debts and liabilities incurred in the course of settling the estate.”  Dep’t. of Public Welfare v. Anderson, 377 Mass. 23, 28-29 (1979) (citations omitted, emphasis added) (construing G. L. c. 197, § 9, the predecessor to § 3-803).  That the alleged promise to pay Shulman could not have been enforced against the Tosis during their lifetimes does not change the fact that Shulman was a creditor of the Tosis.  See Anderson, 377 Mass. at 32 (even when a right to recover arises after decedent’s death, the debt may still be one of the deceased “if it arose while the debtor was alive”) (footnote, citation omitted); see also New England Trust Co. v. Spaulding, 310 Mass. 424, 429 (1941) (recognizing that a decedent may form a contract that can be performed only after his death by his executors).  Shulman remains a creditor of the Tosis and not of their Estate, which played no role in the alleged contract.  See, e.g., Kofinke v. Maranhas, 375 Mass. 141, 145 (1978) (claimant alleging decedent failed to include claimant in will, as decedent had promised, and for compensation for services rendered to decedent during her lifetime was a creditor of the deceased; G. L. c. 197, § 9 applied); Delorafano v. Delafano, 333 Mass. 684, 687-688 (1956) (contract to leave property upon death made claimant a creditor of the deceased; G.L. c. 197, § 9 applied); Gilbride v. Dickson, 67 Mass. App. Ct. 1118, *1 (2006) (unpublished decision pursuant to Rule 1:28) (claimant alleging breach of contract and quantum meruit arising from bequest that decedent failed to memorialize is a creditor of the deceased; claim is governed by the one-year statute of limitations of G. L. c. 197, § 9).

Shulman’s reliance on New England Trust Co. for the proposition that he is a creditor of the Estate is misplaced.  That case involved a bank’s option to purchase shares of its stock previously held by a decedent, which option became exercisable after the decedent’s death.  301 Mass. at 426-27.  As such, the bank was neither a creditor of the testator nor of the estate, and could not, and did not, exercise its option until after the decedent died.  As such, the one-year statute of limitations contained in G. L. c. 197, § 9 did not apply to the bank’s suit to enforce its equitable interest in the shares.  310 Mass. at 430-431.  In contrast, Shulman’s interest arose from the agreement he alleges was reached with the Tosis during their lifetimes, not with the Estate after their deaths.

Because Shulman was a creditor of the Tosis, the one-year statute of limitations contained in § 3-803 applies in this case.  See Abrahamson v. Estate of LeBold, 89 Mass. App. Ct. 223, 225-226 (2016), review denied, 475 Mass. 1102 (2016) (one-year statute of limitations contained in § 3-803 trumps longer statutes of limitations contained in G. L. c. 260).  This result is consistent with “[t]he purpose of the statute [which] is to expedite the settlement of estates.” New England Trust Co., 310 Mass. at 429; see also Abrahamson, 89 Mass. App. Ct. at 226-227 (legislative intent to expedite the bringing of claims against an estate demonstrated by shortening of statute of limitations from four years from the date of the executor’s bond to the current one year from the date of the decedent’s death).

The conclusion that the one-year statute of limitations is applicable does not alone resolve Linda’s motion to dismiss.  The record shows that this action was filed on October 7, 2016, one day before that one year statute expired.  It was therefore timely filed under § 3-803.  The issue then becomes whether service was timely made.  The return of service in this case appears on the docket.  See Docket No. 4.  The Court can take judicial notice of its own records.  See Dwight v. Dwight, 371 Mass. 424, 426 (1976); Brookline v. Goldstein, 388 Mass. 443, 447 (1983); Miller v. Norton, 353 Mass. 395, 399 (1967).  That return shows that service was not made until December 19, 2016, more than two months after the October 8, 2016 deadline established under § 3-803.

As Shulman failed to file this action and serve his complaint on Linda within the one-year period required under G.L. c. 190B, § 3-803, his claims are time-barred.



Defendant’s motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6) is therefore ALLOWED.






Justice of the Superior Court


DATE:  June 1, 2017

[1] Of the estate of Velia N. Tosi

[2] Because three members of the Tosi family are involved in this matter, their first names will be used to identify them in this decision.

[3] Linda also moves to dismiss under Rule 12(b)(4) for insufficiency of process and under Rule 12(b)(5) for insufficiency of service of process and offers her affidavit in support for the latter claim, alleging that she was not served properly under G.L. c. 190B, § 3-803(a).  Shulman contests the facts regarding the method of service.  The Court need not decide the Rule 12(b)(4) or (5) claims nor consider the facts Linda alleges in support of those arguments.  If it applies in this case, G. L. c. 190B, § 3-803(a), the statute upon which Linda relies in support of her Rule 12(b)(6) argument, requires service within a year.  Leaving aside the details of service, the date on which service was made is revealed in the undisputed record.  As the Rule 12(b)(6) motion is determinative here, the Court need only resolve that claim, and excludes Linda’s affidavit from consideration of it.  See Mass. R. Civ. P. 12(b), (“If, on any motion asserting the defense numbered (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56”).

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