BARRY LANDON v. TIMOTHY BURKE (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, the estate of Sheldon Elizabeth Landon, appeals from a summary judgment entered by a Superior Court judge in favor of the defendants, Timothy Burke and his law firm, on the plaintiff's complaint alleging legal malpractice.³ Concluding that the summary judgment record contains no evidence that would support tolling the statute of limitations based on 11 U.S.C. § 108(a), we affirm.

1. Standard of review. “We review a grant of summary judgment de novo.” Bank of N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503, 506 (2019), quoting Deutsche Bank Nat'l Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 252-253 (2015). We evaluate “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Estate of Urban, 102 Mass. App. Ct. 284, 289-290 (2023), quoting Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015). “To survive a motion for summary judgment, a nonmoving plaintiff must designate specific facts showing that there is a genuine issue for trial.” Earielo v. Carlo, 98 Mass. App. Ct. 110, 115 (2020), quoting Torres v. Commissioner of Correction, 427 Mass. 611, 614, cert. denied, 525 U.S. 1017 (1998).

2. Statute of limitations. The judge concluded that, as a matter of law, the plaintiff's law suit is barred by the statute of limitations. “Where a defendant raises the statute of limitations as an affirmative defense, the plaintiff bears the burden of proving the action was timely commenced.” Wolsfelt v. Gloucester Times, 98 Mass. App. Ct. 321, 324 (2020). “Therefore, ‘in order for a plaintiff's claim to survive a summary judgment motion, [s]he must demonstrate a reasonable expectation of proving that the claim was timely filed.’ ” Davalos v. Bay Watch, Inc., 494 Mass. 548, 556 (2024), quoting Koe v. Mercer, 450 Mass. 97, 101 (2007).

Here, the complaint was filed on January 8, 2021. The statute of limitations for legal malpractice claims is three years. See G. L. c. 260, § 4; Frankston v. Denniston, 74 Mass. App. Ct. 366, 371 (2009). The summary judgment record establishes, regarding the Norfolk County probate matter handled by the defendants, that the plaintiff told the defendant in March 2016 that he was “not acting in the best interest of [his] client at all,” that his law “firm NEVER EVER Listens to me,” and that he was “plot[ting] to steal” her money, and called him a “satanic jerk.” Regarding the Barnstable County probate matter handled by the defendants, the plaintiff in December 2016 moved to dismiss the defendant as counsel on the ground that “he is severely negligent.” Accordingly, there is no genuine issue of material fact that the claims accrued more than three years before the complaint was filed. See Vinci v. Byers, 65 Mass. App. Ct. 135, 140-141 (2005).⁴

The plaintiff, however, invokes the provisions of 11 U.S.C. § 108(a). Under this statute,

If applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of--

(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or

(2) two years after the order for relief.

“The extension inures only to the trustee's benefit. The plain language of § 108(a) applies only to a trustee ․” Meiburger v. Ocwen Fed. Bank, FSB, 307 B.R. 517, 520 (Bankr. E.D. Va. 2003).⁵ Accordingly, a debtor may not avail herself of the benefits of this statute. See, e.g., Roach v. Option One Mtge. Corp., 598 F. Supp. 2d 741, 755 (E.D. Va. 2009), aff'd, 332 F. App'x 113 (4th Cir. 2009).

Both here and before the Superior Court, the plaintiff asserted that the complaint was filed on behalf of the bankruptcy trustee. It is doubtful whether this fact, even if true, would benefit the plaintiff where the bankruptcy trustee ultimately abandoned the lawsuit. See Kremen v. Benedict P. Morelli & Assocs. PC, 864 N.Y.S.2d 2, 3-4 (N.Y. App. Div. 2008) (“Once the bankruptcy estate was fully administered and the trustee abandoned the claim, the cause of action revested solely in plaintiffs’ names. When a trustee abandons a claim as to the debtor, the latter may no longer invoke the benefit of 11 USC § 108 [a] [2]”).

We need not decide whether to follow Kremen, because there is a more fundamental problem with the plaintiff's argument, which is that it has no support in the summary judgment record. “A motion for summary judgment, or opposition thereto, may be supported by ‘affidavits ․ made on personal knowledge’ and may be ‘supplemented or opposed by depositions, answers to interrogatories, or further affidavits.’ ” Estate of Urban, 102 Mass. App. Ct. at 297, quoting Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974). In opposing summary judgment, the plaintiff asserted that “this case was under the control of the Bankruptcy Trustee, who engaged Counsel to pursue this claim in 2019,” but provided no affidavit or other evidence to that effect. Indeed, the plaintiff provided no affidavits of any sort, and nothing in the evidence submitted by the defendants supported this contention. The unsworn assertions of counsel are not evidence. See Murray v. Super, 87 Mass. App. Ct. 146, 153 n.12 (2015); Community Builders, Inc. v. Indian Motocycle Assocs., Inc., 44 Mass. App. Ct. 537, 553 (1998).

Notably, the complaint here, although referring to the plaintiff as “Sheldon Manuel, now Sheldon Landon, the bankrupt,” does not list the bankruptcy trustee as the plaintiff or otherwise state that it is filed on behalf of the bankruptcy trustee. See Tingley v. Harrison, 125 Idaho 86, 92 (1994) (“Tingley has failed to show that he was mistakenly named a party in lieu of the trustee ․”). It is verified by the plaintiff, who signed as “Sheldon Manuel-Landon, Plaintiff,” not by the bankruptcy trustee.

To be sure, the judge could have taken judicial notice of the bankruptcy filings, which would have demonstrated that the bankruptcy trustee received permission from the court to hire the plaintiff's counsel to pursue a claim against the defendants. See Allen v. Allen, 89 Mass. App. Ct. 403, 405 n.3 (2016). That would have been challenging, however, as nothing in the record suggests that the plaintiff provided any information regarding the bankruptcy action, which proceeded in the Northern District of Oklahoma, to the judge. We see no reason why the judge was obligated to search for and find this information independently. In any event, the plaintiff never asked the judge to take judicial notice of any bankruptcy filing, and, “[e]ven in situations where judicial notice is appropriate, it should not be taken without notice to the parties and an opportunity to be heard.” Commonwealth v. Hilaire, 92 Mass. App. Ct. 784, 789 (2018), citing Mass. G. Evid. § 201(d) & commentary (2017). Accordingly, we discern no abuse of discretion in the judge's not taking judicial notice sua sponte of these bankruptcy filings. See Commonwealth v. Conley, 103 Mass. App. Ct. 496, 509 (2023) (whether to take judicial notice within judge's discretion).

Without any evidence in the summary judgment record that the complaint was initiated on behalf of the bankruptcy trustee, there was no genuine issue of material fact whether the statute of limitations was tolled by 11 U.S.C. § 108(a). Accordingly, the plaintiff failed to “demonstrate a reasonable expectation of proving that the claim was timely filed.” Davalos, 494 Mass. at 556, quoting Koe, 450 Mass. at 101. Summary judgment was properly granted.⁶

Judgment affirmed.

FOOTNOTES

3.   The plaintiff also raised a claim of unfair and deceptive practices under G. L. c. 93A. The plaintiff makes no argument on appeal concerning the dismissal of that count.

4.   The plaintiff properly does not press the continuing representation doctrine on appeal. See Lyons v. Nutt, 436 Mass. 244, 250 (2002) (“The doctrine has no application, however, where the client actually knows that he suffered appreciable harm as a result of his attorney's conduct”).

5.   A debtor-in-possession may also have the benefit of 11 U.S.C. § 108(a), because a debtor-in-possession has “the same ability to sue on behalf of the estate as a trustee.” Bryant v. Hamilton County, 548 B.R. 239, 244 (Bankr. E.D. Tenn. 2016). The plaintiff here filed under chapter 7 and thus was not a debtor-in-possession. See Morris v. King, 621 B.R. 903, 919 (Bankr. D. Kan. 2020).

6.   Because we agree with the Superior Court judge that summary judgment was properly granted on statute of limitations grounds, we need not discuss the judge's alternative conclusion that there was no genuine issue of material fact concerning causation.