statute of limitations defense in Massachusetts

2024Epstein v. Seigel, 396 Mass. 278, 279 (1985).

1997Epstein v. Seigal, 396 Mass. 278, 279 (1985).

2012Silvestris v. Tantasqua Regional School District, 446 Mass. 756, 766-67 (2006).

2011Silvestris v. Tantasqua Regional School District, 446 Mass. 756, 767 (2006).

2006Cf. Libman v. Zuckerman, 33 Mass.App.Ct. 341, 345 (1992) (because defendants failed to object to master’s report, court declined to review master’s conclusion that condominium association was estopped from raising statute of limitations in part because developers controlled the association, which made decisions concerning common areas and litigation). 9 This Court declines to rule that the statute of limitations in this case was tolled based on adverse domination, absent appellate authority for applying that doctrine in this context.

1999In support of this argument, the plaintiffs rely upon Libman v. Zuckerman, 33 Mass.App.Ct. 341, 345 (1992), another defective construction case, in which a master concluded that the defendants, condominium developers, were estopped from raising the statute of limitations defense, as they had been managers of the condominium owners' association.

2001Bowen v. Eli Lilly & Co., Inc., 408 Mass. 204, 205 (1990).

1995On appeal, the Commonwealth contends that the judge should have determined as a matter of law that the statute of limitations barred the plaintiffs’ action because the biological mother’s history of mental illness was not “inherently unknowable” at the time that Elizabeth’s adoption was finalized in 1976. 7 We have recognized the “unfairness of a rule that holds that the statute of limitations has run even before a plaintiff knew or reasonably should have known that she may have been harmed by the conduct of another.” Bowen v. Eli Lilly & Co., 408 Mass. 204, 205 (1990).

1988See LaBonte v. New York, N.H. & H, R.R., 341 Mass. 127 , 131 (1960); MacKeen v. Kasinskas, 333 Mass. 695, 698 (1956).

1988See LaBonte v. New York, N.H. & H.R.R., 341 Mass. 127 , 131 (1960); MacKeen v. Kasinskas, 333 Mass. 695, 698 (1956).

1997Catrone v. Thoroughbred Racing Ass’ns of North America, 929 F.2d 881, 886 (1st Cir. 1991), citing Fidler v. E.M.

1994Catrone v. Thoroughbred Racing Associations of North America, 929 F.2d 881 (1st Cir. 1991), citing Fidler v. E.M.

2012We did not indicate any disagreement with the more general premise of the decision, see id. at 434 , that the attorney-client privilege may be waived when the client puts in issue information that otherwise would be protected by the privilege — such as information relating to when the plaintiff client knew certain facts that are directly relevant to the defendant’s statute of limitations defense.

1993See Conkling v. Turner, 883 F.2d 431, 434-35 (5th Cir 1989) (where plaintiff raised issue of when he became aware of the defendants’ allegedly fraudulent conduct in response to the defendants’ statute of limitations defense, the court held that the plaintiff waived the attorney-client privilege concerning when the plaintiff may have become aware of the defendants’ fraud); Sax v. Sax, 36 F.R.D. 541 , 544 (D.Mass. 1991) (where only the defendant’s attorney could have explained the agreement to the defendant, the defendant waived the attorney-client privilege by claiming a lack of understanding o

2010We have repeatedly referred to the statute of limitations defense as an affirmative defense, Commonwealth v. Steinberg, supra at 606 , citing Couture v. Commonwealth, 338 Mass. 31, 33 (1958), and have explained with respect generally to affirmative defenses that where asserted, “the defendant takes on a burden of production because the Commonwealth has no burden of disproving an affirmative defense ‘unless and until there is evidence supporting such defense,’ ” Commonwealth v. Cabral, 443 Mass. 171, 179 (2005), quoting Model Penal Code § 1.12(1), (2) (1985).

1992See Smith, supra. While opinions differ as to the requirements for an effective waiver, United States v. Karlin, supra at 92-93 , cited by the Supreme Judicial Court in Commonwealth v. Steinberg, supra, holds that the defense “will be considered waived if not raised in the district court before or at trial.” Compare United States v. Wild, supra. As to the issue at hand then, the statute of limitations defense, not having been raised in the Superior Court, was waived, and the judge was not required, sua sponte, to instruct the jury on that issue. *648 5.

2025See Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 401 (2002).

2024See Commonwealth v. Bly, 444 Mass. 640, 650-651 (2005) (explaining importance of waiver doctrine). 6 Smith also argues that a statute of limitations defense cannot properly be resolved on a motion to dismiss, as occurred here, but instead must await the summary judgment phase of a case.

2024See Nader, supra. "A motion to dismiss under rule 12 (b) (6) is an appropriate vehicle for raising" a statute of limitations defense.

2017Id. at 60, citing Muentner, supra ("A defendant's right to a fair trial cannot be conditioned on his or her giving up a vested right to a statute of limitations defense, and a defendant's vested right to a statute of limitations cannot be conditioned on his or her giving up the right to a fair trial"). 6 In contrast, in some States, like Florida, by statute, the jury must be instructed on the penalty for the offense for which the accused is being charged.

2017Id, at 60, citing Muentner, supra (“A defendant’s right to a fair trial cannot be conditioned on his or her giving up a vested right to a statute of limitations defense, and a defendant’s vested right to a statute of limitations cannot be conditioned on his or her giving up the right to a fair' trial”).

2017The language of a statute is to be interpreted in accordance with its plain meaning, and if the “language is clear and unambiguous, it is conclusive as to the intent of the Legislature.” Commissioner of Correction v. Superior Court Dep’t of the Trial Court, 446 Mass. 123, 124 (2006), citing Commonwealth v. Clerk-Magistrate of the W.

2017See also Commonwealth v. Shanley, 455 Mass. 752, 780-781 (2010) ("We have repeatedly referred to the statute of limitations defense as an affirmative defense . . .").

2017See also Commonwealth v. Shanley, 455 Mass. 752, 780-781 (2010) (“We have repeatedly referred to the statute of limitations defense as an affirmative defense . . .”).

2017If the defendant asserts the statute of limitations defense, however, the defendant may “obtain[ ] an instruction informing the jurors that, because the passage of time precludes prosecution for the lesser offense, they must acquit the defendant if they conclude that the evidence would support a conviction of the lesser crime only.” Id. at 305 .

2017For that reason I do not subscribe to the approach, outlined in State v. Delisle, 162 Vt. 293, 304-305 (1994), in which the judge not only instructs the jury on the lesser included offense but also informs them that the statute of limitations will bar any punishment for that offense.

2017See State v. Short, 131 N.J. 47, 56-58 (1993); State v. Muentner, 138 Wis. 2d 374 , 392- 393 (1987).

2017See, e.g., Commonwealth v. White, 475 Mass. 724, 732-734 (2016) (statute of limitations instruction was given toward end of full jury charge); Model Jury Instructions on Homicide 18 (2013) (instruction on affirmative defense of self-defense "may be given . . . prior to the murder instruction or inserted within the murder instruction").

2017Spaziano, supra at 455-456 .

2017Spaziano, 468 U.S. at 455-456 .

2017Id.

2017The court fails to explain this change in our jurisprudence, or why the statute of limitations should differ from any other disputed affirmative defense. 4 "If the [Commonwealth fails] to produce sufficient evidence to prove the crime charged, it might still persuade the jury that the defendant was guilty of something." Spaziano v. Florida, 468 U.S. 447, 456 (1984), citing Beck v. Alabama, 447 U.S. 625, 633 (1980).

2015See id. at 151 .

2015See Carpenter v. Texaco, 419 Mass. 581 , 583 n.4 (1995) (a continuing trespass “based on recurring tortious or unlawful conduct” is not barred by the statute of limitations); Sixty-Eight Devonshire, Inc. v. Shapiro, 348 Mass. 177, 184 (1964) (continuedinvasion of property right defeats statute of limitations argument); Wishnewsky v. Saugus, 325 Mass. 191, 194 (1950) (each trespass constitutes a new cause of action).

2015See Carpenter v. Texaco, 419 Mass. 581 , 583 n.4 (1995) (a continuing trespass “based on recurring tortious or unlawful conduct” is not barred by the statute of limitations); Sixty-Eight Devonshire, Inc. v. Shapiro, 348 Mass. 177, 184 (1964) (continuedinvasion of property right defeats statute of limitations argument); Wishnewsky v. Saugus, 325 Mass. 191, 194 (1950) (each trespass constitutes a new cause of action).

2015See Carpenter v. Texaco, 419 Mass. 581 , 583 n.4 (1995) (a continuing trespass “based on recurring tortious or unlawful conduct” is not barred by the statute of limitations); Sixty-Eight Devonshire, Inc. v. Shapiro, 348 Mass. 177, 184 (1964) (continuedinvasion of property right defeats statute of limitations argument); Wishnewsky v. Saugus, 325 Mass. 191, 194 (1950) (each trespass constitutes a new cause of action).

2013Sherer Co., 291 Mass. 35, 59-60 (1935), which requires a showing of injury or prejudice.

2012Cf. State v. Grose, 387 N.W.2d 182, 189 (Minn. Ct. App. 1986) (“The grand jury should have been properly instructed as to the statute of limitations defense”); State v. Hogan, 336 N.J.

2012Cf. State v. Grose, 387 N.W.2d 182, 189 (Minn. Ct. App. 1986) (“The grand jury should have been properly instructed as to the statute of limitations defense”); State v. Hogan, 336 N.J.