Argued: March 1, 2016
Deborah M. Mann, Esq. (orally), and Brendan P. Rielly, Esq.,
Jensen Baird Gardner & Henry, Portland, for appellant
J. ODonovan, Esq. (orally), and Jennifer L. Kruszewski, Esq.,
Epstein & ODonovan, LLP, Portland, for appellee Thomas
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Thomas Maxwell appeals from a summary judgment entered by the
Cumberland County Probate Court (Mazziotti, J.) in
favor of David Gourevitch, a qualified beneficiary of the
George Parsons 1907 Trust, on his complaint for a declaratory
judgment that Maxwell is not a beneficiary of the Trust.
Because we agree with Maxwell that the undisputed facts
establish that Gourevitchs claim was barred by the statute of
limitations, we vacate the judgment.
The summary judgment record contains the following facts,
which are not in dispute. See Harlor v. Amica Mut. Ins.
Co., 2016 ME 161, ¶ 7, 150 A.3d 793. On November 1,
1907, George Parsons executed an indenture creating the
George Parsons 1907 Trust. Parsons died on December 4, 1907,
without having amended or revoked the Trust. The Trust
provides that it will terminate twenty-one years after the
death of the last member of a group of named individuals. The
last person in that group died in 2002. Thus, the Trust will
terminate in 2023.
The dispute in this case has its genesis in the death of a
descendant of George Parsons-Philippa Wistrand-in May 1990,
raising the question as to who was to receive her share of
the Trust distributions. Philippa was a beneficiary of the
Trust and was the unmarried, biological mother of Thomas
Maxwell, who was born in 1963 and was adopted by Philippas
sister, Sylvie Maxwell. Sylvie was also a descendant of George
Parsons and a beneficiary of the Trust in the same branch of
the family tree. Pursuant to the applicable portion of
paragraph 5 of the Trust, Philippas share of the Trust income
was to be paid to her surviving "issue" upon her
death, or if there was none, to any surviving siblings or
their issue if a sibling was already deceased, with other
provisions applying if no siblings survived. Therefore, upon
Philippas death, a question arose as to whether her share of
the income was to be paid to Thomas Maxwell as her surviving
issue even though he was a nonmarital child,  or to Sylvie as
her surviving sister.
At the recommendation of the Trustees, in September and
November 1990, Sylvie executed documents to release any
rights she had in Philippas share of the Trust income and
assign those rights to Maxwell. In 1990, the Trustees began
distributing income to Maxwell.
In 1994, addressing a separate matter, the Trustees
petitioned the Cumberland County Probate Court for
instructions on whether adopted children were included as
beneficiaries of the Trust. Although Maxwell had been adopted
by Sylvie and received notice of the petition, the Trustees
agreed that the courts decision would not "affect"
him, and he did not participate in the proceeding. In the
resulting 1995 judgment, the court (D. Childs, J.)
determined that the provisions of the Trust should be
interpreted according to "the rules of construction set
by common law during the lifetime of George Parsons."
Applying the common law rules of construction in effect in
1907, the court concluded that Parsons did not intend to
include adopted children as beneficiaries, and it instructed
the Trustees that the two adopted children who were
respondents in that matter were not beneficiaries.
In 1996, after the court had issued that judgment, one of the
Trustees became concerned that no formal decision had been
made about whether Maxwell was a beneficiary entitled in his
own right to Philippas share of income or whether he was
entitled to receive income only by virtue of the assignments
executed by Sylvie. On July 26, 1996, the Trustees passed a
resolution recognizing Maxwells status as Philippas
biological son and as a beneficiary of the
Trust. Maxwell will continue to receive monthly
and annual distributions of Trust income while the Trust
continues, and will receive ten percent of the corpus of the
Trust when the Trust terminates in 2023 if he is then living.
In April 2014, Gourevitch filed a complaint in the Cumberland
County Probate Court requesting a declaratory judgment that
Maxwell, as a nonmarital child, cannot be a beneficiary of
the Trust. Gourevitch is a descendant of George Parsons under
the same branch of the family tree as Philippa, Sylvie, and
Maxwell and served as a Trustee from 1999 to 2002.
Gourevitch also alleged in his complaint that Maxwell is not
a beneficiary of the Trust because he is an adopted child and
requested a declaratory judgment to that effect. As the
Probate Court (Mazziotti, J.) ultimately noted,
however, "Maxwells status as an adopted child of Sylvie
Maxwell is of no consequence in this proceeding"
because, as a result of the courts 1995 judgment, adopted
children are not beneficiaries. Neither party challenges that
conclusion on appeal.
Gourevitch moved for a summary judgment, see M.R.
Civ. P. 56(a),  arguing that the terms of the Trust
entitled him to a judgment as a matter of law because Maxwell
was indisputably born to Philippa when she was not married.
Maxwell opposed Gourevitchs motion and filed a cross-motion
for a summary judgment. He argued, among other things, that
Gourevitchs claim was barred by the statute of limitations.
In May 2015, the court denied Gourevitchs motion and granted
Maxwells cross-motion for a summary judgment based on the
statute of limitations. Although the court determined, as a
matter of law, that the terms of the Trust did not include
nonmarital children as beneficiaries, the court concluded
that Gourevitchs cause of action to challenge Maxwells status
was barred by the statute of limitations because it accrued,
at the latest, in 1996, when the Trustees formally recognized
Maxwell as Philippas son and as a beneficiary of the Trust.
In reaching that conclusion, the court rejected Gourevitchs
argument that each monthly payment to Maxwell constituted a
breach of fiduciary duty giving rise to a new cause of
action. The court likened Gourevitchs argument to the common
law "continuing tort doctrine, " McLaughlin v.
Superintending Sch. Comm. of Lincolnville, 2003 ME 114,
¶ 23 n.6, 832 A.2d 782, and concluded that the doctrine
did not apply here because the 1996 resolution was a discrete
action that created the harm of which Gourevitch complained.
The court concluded that Gourevitchs claim therefore was
outside the six-year limitations period, see 14
M.R.S. § 752 (2016), and that Maxwell was entitled to a
judgment as a matter of law on that basis.
On May 19, 2015, Gourevitch filed a timely motion to alter or
amend the judgment, see M.R. Civ. P. 59(e),
based on a decision that the Supreme Court of the United
States had issued on the previous day holding that a new
cause of action accrues each time a trustee breaches a
continuing fiduciary duty owed to a beneficiary "to
monitor investments and remove imprudent ones." See
Tibble v. Edison Int'l, 575 U.S. ___, 135 S.Ct.
1823, 1828-29 (2015). Gourevitch contended that his complaint
was timely because the Trustees had a continuing duty to
distribute income only to beneficiaries, and therefore each
payment to Maxwell constituted a new injury.
While the motion to alter or amend was pending, Gourevitch
appealed based on the statute of limitations issue, and
Maxwell cross-appealed the courts separate determination
that, as a nonmarital child, he was not a beneficiary.
See 18-A M.R.S. § 1-308 (2016); M.R. App. P. 2.
The court then granted Gourevitchs Rule 59 motion and entered
an amended summary judgment in his favor. Accordingly, the
courts final judgment integrates its earlier determination
that, as a matter of law, Maxwell is not a beneficiary of the
Trust, and its later conclusion, based on Tibble,
that Gourevitchs claim was timely.
Although the courts ultimate judgment was in Gourevitchs
favor and he is defending it, in most respects, on this
appeal, he remains an appellant because he was the first
party to file a notice of appeal. See M.R. App. P.
A party is entitled to summary judgment when the statements
of material fact and referenced evidence establish that there
is no genuine issue of material fact and that a party is
entitled to a judgment as a matter of law. M.R. Civ. P.
56(c). We review de novo the grant of a motion for summary
judgment. Fiduciary Tr. Co. v. Wheeler, 2016 ME 26,
¶ 8, 132 A.3d 1178. A genuine issue of fact exists if
"sufficient evidence supports a factual contest to
require a factfinder to choose between competing versions of
the truth at trial." Baillargeon v. Estate of
Daigle, 2010 ME 127, ¶ 12, 8 A.3d 709 (quotation
Maxwell argues that Gourevitchs claim for a declaratory
judgment, commenced in 2014, is barred by 14 M.R.S. §
752, which provides that "civil actions shall be
commenced within 6 years after the cause of action accrues
and not afterwards." A cause of action accrues when a
claimant sustains a "judicially cognizable injury."
Estate of Miller, 2008 ME 176, ¶ 25, 960 A.2d
1140 (quotation marks omitted). When the relevant facts are
not in dispute, determining when a cause of action
accrued and whether a claim is time-barred are legal
questions subject to de novo review. See Estate of
Weatherbee, 2014 ME 73, ¶ 14, 93 A.3d 248;
McLaughlin, 2003 ME 114, ¶12, 832A.2d782.
As courts of other jurisdictions have held, a cause of action
based on the breach of a trust accrues, and the statute of
limitations begins to run, at the time of the breach. See
Renz v. Beeman, 589 F.2d 735, 743 (2d Cir. 1978)
(holding that the statute of limitations was measured from
the time of the breach of the trust), cert. denied,
444 U.S. 834 (1979); Harris Tr. Bank of Ariz. v. Superior
Court, 933 P.2d 1227, 1231 (Ariz.Ct.App. 1996) (holding
that the statute of limitations began to run when the trustee
"violate[d] one or more of his obligations to the
beneficiary or repudiate[d] the trust"); see also
Cecil v. Cecil, 712 S.W.2d 353, 355 (Ky. Ct. App. 1986)
(holding that the statute of limitations began to run when a
beneficiary received written notice of a termination of trust
agreement); cf Tersavich v. First Nat'l Bank &
Tr. Co. of Rockford, 551 N.E.2d 815, 819-20 (Ill.App.Ct.
1990) (holding that the statute of limitations on an
illegitimate childs claim seeking construction of a trust
runs from the later of (1) the childs reaching the age of
majority or (2) the time when the child knows, or should
know, that the trustee has "repudiated, disavowed or
acted in hostility to the trust" (quotation marks
In some circumstances, determining the date of the breach may
be complicated, such as when a beneficiary claims that a
trustee has imprudently retained an investment. See
Tibble, 575 U.S. ___, 135 S.Ct. at 1828-29. For good
reason, the Supreme Court of the United States has held that
a trustee has an ongoing duty to monitor the ever-changing
performance of investments, which may bring the date of
accrual within a statute of limitations. See id.
There is no legal basis, however, to support a continuing
duty to monitor a persons status as a beneficiary of a
heritable trust. To the contrary, as the Court of Appeal of
California held, a beneficiarys challenge to his proportion
of trust income may be barred if proportionate shares have
been paid for the requisite limitation period. See Getty
v. Getty, 187 Cal.App.3d 1159, 1168-69 (Cal.Ct.App.
1986). In Getty, a beneficiarys claim was barred
because he did not take legal action until after
distributions had been made in consistent proportions for
about twenty-five years following his attainment of
We have also previously held that statutes of limitations
begin to run when discrete events make potential litigants
aware of possible claims. Specifically, we held that a health
care trusts cause of action for unjust enrichment against its
beneficiary accrued upon the beneficiarys settlement of an
automobile insurance claim and did not continue to accrue
each time monthly annuity payments to the injured beneficiary
were made ...