54 Mass. App. Ct. 817 | Mass. App. Ct. | 2002
The plaintiff obtained a default judgment in Texas on various tort claims,
For reasons not apparent from its memorandum of decision, the Superior Court did not address the plaintiff’s principal argument in opposition to the defendant’s motion to dismiss: that the Municipal Court and District Court dismissals were for matters of “form” and that, therefore, the plaintiff was entitled to commence a new action within one year of each successive dismissal. See G. L. c. 260, § 32. That statute provides that “[i]f an action duly commenced within the time limited in this chapter is dismissed ... for any matter of form ... the plaintiff . . . may commence a new action for the same cause within one year after the dismissal ... of the original action.”
It is settled that a dismissal for want of jurisdiction is for a “matter of form” within the meaning of the statute. See Ciampa v. Beverly Airport Commn., 38 Mass. App. Ct. 974, 974 (1995). The defendant nonetheless argues that a plaintiff may employ the resuscitative powers of the statute only once. For support, the defendant points to the statute’s reference to dismissal of the “original” action.
We see no reason to assign so narrow a construction to the statute. The provisions of G. L. c. 260, § 32, are to be construed liberally, in the interest of determining the parties’ rights on the merits. See Loomer v. Dionne, 338 Mass. 348, 350-351 (1959); Liberace v. Conway, 31 Mass. App. Ct. 40, 42 (1991). We construe the word “original” within the operation of the statute to refer to the dismissed action standing as the predicate for the timely filing of a new complaint within one year after the dismissal. Nothing in the language or purpose of the statute compels a conclusion that it may be employed only once.
The defendant timely was placed on notice of the plaintiff’s claims against him, and of the plaintiff’s resort to the courts. See Loomer v. Dionne, supra at 351-352. There is no indication in the record that the plaintiff attempted for dilatory purposes to prolong the limitations period by reliance on the statute. Boyajian v. Hart, 312 Mass. 264 (1942), cited by the defendant to illustrate the possibility of prejudice, involved a series of actions pursued through protracted proceedings to final judgment and is on that basis distinguishable; in any event it did not involve the operation of the statute here at issue.
The Superior Court judgment of dismissal is vacated.
So ordered.
The plaintiff’s complaint alleged fraud, breach of fiduciary duty, and negligence arising from the plaintiff’s investment in a limited partnership formed by the defendant for the purpose of selling medical testing kits.
The Superior Court complaint included a count for breach of contract, which the motion judge treated as indistinguishable from a claim for breach of fiduciary duty and therefore as subject to the statute of limitations for actions in tort. Our disposition of the case renders immaterial the question of whether the judge’s ruling was correct in that respect.