Facts: Same as Okoli v. Okoli, 81 Mass. App. Ct. 371 (2012).
Procedural History: While the parties' divorce case was underway,
the husband filed the present action in Superior Court, alleging eight causes
of action. Claims I and II alleged breach of contract against the wife based on
her promise in the 2001 agreement that the husband would not be responsible for
any financial obligation to the children and the wife would not sue him for
child support. Claim III alleged duress against the wife in inducing him to
sign the forms by threatening to withdraw support for his visa application.
Claim IV alleged intentional infliction of emotional distress against the wife
for her conduct in obtaining the husband's signatures for the consent forms.
Claim V alleged fraud and deceit against the wife based on her utilization of
the consent forms even though the husband did not read them in full and based
on allegations that the wife had forged his signature. Claim VI alleged breach
of contract against the Boston IVF based upon its acceptance of the husband's
consent despite having no personal contact with him. Claim VII alleged fraud
and deceit on part of Boston IVF for accepting the last consent form without
the annotations that he had made on previous forms. Claim VIII alleged
conspiracy to defraud against both of the defendants on their collective
behavior in obtaining the husband's consent.
The Judge granted motions to
dismiss brought on behalf of both defendants, ruling that the present complaint
was merely a collateral attack on the Probate and Family Court judgment that
the husband was the legal father of the twins based on his consent to the
wife's IVF and was therefore required to pay child support. The husband
appealed.
Issue: Whether
the lower court erred in dismissing all of the husband's claims based upon the
doctrine of collateral estoppel.
Yes and no.
The court determined that Mass.R.Civ.P. 12(b)(6) and Mass.R.Civ.P. 12(b)(9)
offered a more direct path to dismissal of the complaint than the doctrine of
collateral estoppel. However, the court reversed as to Claim V because
collateral estoppel did not apply and the claim could not be dismissed under
rule 12(b).
The court concluded that Claims I
and II must be dismissed under Rule 12(b)(9) due to the “[p]endency of a prior
action in a court of the Commonwealth” because Rule 12(b)(9) provides for the
dismissal of a second action in which the parties and the issues are the same
as those in a prior action that is still pending. Since Claims I and II address
the enforceability of the 2001 agreement concerning child support and their divorce
case initially addressed the issue, he is precluded from bringing these claims.
Claims VII and VIII, against
Boston IVF were dismissed under rule 12(b)(6) based on the statute of
limitations. Tort transactions must be commenced within three years after the
cause of action occurs. Claims VII and VIII are tort claims concerning fraud
and conspiracy to defraud. The husband's cause of action occurred upon Boston
IVF's acceptance of his final consent form in 2002 and he filed his complaint
in 2008; beyond the three year limitation period.
Claims III, IV, V, VI, and VIII
were not barred by collateral estopell and Claim VI was not barred by
collateral estoppel or Rule 12(b)(9) because Boston IVF was not a party to the
divorce case. Claims III, IV, V, and VIII were not barred by collateral estoppel
as to the wife because the issues in these claims and the prior adjudication
were not identical and the issue decided in that earlier litigation was not
essential to the judgment. However, the court found that the husband had failed
to sufficiently plead claims III, IV, and VIII in order to survive a Rule
12(b)(6) motion.
As to Claim V, the court did find
that the husband's fraud allegation against the wife was sufficient to survive
the motion to dismiss. This claim is distinct from the analysis of the
husband's consent to IVF in the parties' divorce proceedings in that the fraud
claim examines the husband's actions just prior to signing the last form as he
claims that he would not have agreed to sign the form but for the wife's fraud.
Therefore, this claim was remanded. (MW)
