LESLEY E. BARRILE v. GAYLE F. CUTTER, Trustee of 25 Worcester County Realty Trust.

The respondent in this partition action denies the petitioner’s claimed interest in the subject property by claiming that the petitioner, who gained her common title along with the respondent’s father, as the sole heirs at law of Nancy E. Connors (“Connors”), was not, despite a judgment of the Probate Court, actually the daughter and an heir of Connors. The parties’ dispute is over claimed ownership interests in a residential property located at 25 Worcester Court in Falmouth (the “Property”). Common title to the Property is derived as a result of the death of Connors, who passed away on December 13, 1985, and the subsequent administration of the estate of Connors by the Middlesex Probate and Family Court (the “Probate Court”), including a petition, inventory, first and final account, and judgment (the “Probate Case”). The administrator of Connors’ estate in the Probate Case was Harold Ingalls (“Ingalls”), Connors’ son. Ingalls and petitioner Lesley E. Barrile (“Barrile”) each obtained a 50% interest in the Property as the son and daughter, respectively, of Connors. On March 22, 2012, Ingalls conveyed his interest by deed to his daughter, respondent Gayle Cutter (“Cutter”). On October 21, 2015, Barrile filed her petition to partition the Property in this court pursuant to G. L. c. 241 §1, et seq. In Cutter’s Answer and Counterclaims, filed on November 23, 2015, she alleges that Barrile is not the natural or legally adopted child of Connors, making Ingalls the sole heir of Connors and beneficiary of the estate, and therefore Cutter, as the grantee of Ingalls’ interest in the Property, the sole owner of the Property.

On January 20, 2016, Barrile filed a Motion for Partial Summary Judgment, Memorandum in support of Motion for Partial Summary Judgment, and Statement of Undisputed Material Facts. On February 16, 2016, Cutter filed an Opposition to Petitioner’s Motion for Partial Summary Judgment, Memorandum of Law in support of Opposition to Petitioner’s Motion for Partial Summary Judgment, and Statement of Material Facts. A hearing on the Motion for Partial Summary Judgment was held on February 29, 2016, and taken under advisement.

The issue raised on this motion for partial summary judgment is whether a proceeding in Probate Court administering an estate is final and binding with respect to the identification of heirs at law, or whether the Probate Court judgment may be collaterally attacked by an heir in a partition action in this court. Cutter argues that she is not collaterally estopped from relitigating the issue because the Probate Court judgment only addressed the distribution of Connors’ estate, and was not an adjudication of issues pertaining to lineage. Barrile contends that an entry of judgment in the Probate Court allowing a will for probate, granting administration of an estate, or approving an account is final and binding, and thus, cannot be collaterally attacked in a subsequent proceeding. For the reasons stated below, Barrile’s motion for partial summary judgment is ALLOWED.

FACTS

The following material facts are found in the record for purposes of Mass. R. Civ. P. 56, and are undisputed for the purposes of the motion for summary judgment:

1. At the time of Connors’ death, she owned the property at 25 Worcester Court, Falmouth (the “Property”) by deed, recorded at the Barnstable Registry of Deeds at Book 1398, Page 681. Petitioner’s Statement of Undisputed Material Facts ¶1 (Pet. Facts), Exh. B; Respondent’s Statement of Material Facts ¶ 1 (Resp. Facts).

2. The estate of Connors, who died intestate, was administered by the Middlesex Probate and Family Court, docket no. 85P7078 (the “Probate Case”). Pet. Facts ¶ 2, Exhs. A-B; Resp. Facts ¶ 2.

3. Ingalls, the father and predecessor-in-interest of Cutter, was the administrator of Connors’ estate. Pet. Facts ¶¶ 5-6, Exh. B; Resp. Facts ¶¶ 5-6.

4. In the Probate Case, Ingalls filed a petition, which he signed under the penalties of perjury, and which identifies Ingalls and Barrile as the sole heirs at law of Connors, her son and daughter, respectively. Pet. Facts ¶ 7, Exh. B; Resp. Facts. ¶ 7.

5. The sworn inventory filed by Ingalls in the Probate Case included the Property. Pet. Facts ¶ 8, Exh. B; Resp. Facts ¶ 8.

6. Ingalls filed his first and final account, under the penalties of perjury on December 23, 1986. It was also signed by Barrile. The first and final account shows, in addition to the payment of various fees, taxes, and vendors, partial and final distribution in equal amounts to Ingalls and Barrile. Pet. Facts ¶¶ 9-10, Exh. B; Resp. Facts ¶¶ 9-10.

7. Judgment in the Probate Case entered on February 6, 1987 allowing the account. Pet. Facts ¶ 11, Exh. B; Resp. Facts ¶ 11.

8. Ingalls conveyed his interest in the Property to his daughter, Cutter, as Trustee of 25 Worcester Court Realty Trust, by deed dated March 22, 2012. The deed states: “For my title reference see probate of Nancy E. Connors at Docket Number 85P7078 in Middlesex County.” Pet. Facts ¶¶ 12-13, Exh. C; Resp. Facts ¶¶ 12-13.

9. After Barrile filed a petition for partition with this court on October 21, 2015, Cutter challenged Barrile’s ownership interest in one half of the Property on the basis that Barreli was not the biological child of Connors.

10. Cutter relies on Ingalls’ affidavit in which he states that he is the only biological child of Connors and believes that Barreli was never legally adopted by his mother. Cutter retained a licensed private investigator, MaryAnn Levasseur (“Levasseur”), to research Barrile’s birth and adoption. Resp. Facts ¶¶ 17-18, Exh. D (Ingalls Aff.), Exh. E (Levasseur Aff.).

11. In his affidavit, Ingalls states that he has “seen a document purporting to be a birth certificate from the Town of Winchester,” but claims it is fraudulent, without stating the explicit basis of this assertion or presenting any evidence of fraud. Ingalls Aff. ¶ 14.

12. Levasseur states in her affidavit that she traveled to the Registry of Vital Records and Statistics and found an “Affidavit & Correction of Birth Record – Winchester Hospital” for Barrile from September 28, 1966, but was unable to obtain a copy of the birth certificate. I find that Ingalls, despite the allegation in his affidavit that he has seen the birth certificate, could not have done so. Neither Ingalls nor Levasseur has offered any admissible evidence of the birth certificate, the authenticity of which they question. Accordingly, Cutter cannot rely on it or use it to collaterally attack the Probate Court’s judgment. Ingalls Aff. ¶ 14; Levasseur Aff. ¶ 7.

13. Ingalls also states in his affidavit that he has never seen any adoption papers showing that Barrile was legally adopted by Connors. Likewise, Levasseur states that she did not find any adoption records, and even if they existed, “it would be a restricted (closed) record.” Ingalls Aff. ¶ 15; Levasseur Aff. ¶ 6. I do not accept Ingalls’ and Levesseur’s assertions of their lack of awareness of adoption papers as conclusive evidence of the non-existence of an adoption for the purposes of this motion.

14. Ingalls states in his affidavit that his signing of the probate documents attesting to Barrile’s legal status was a “manifest error.” Ingalls Aff. ¶ 16.

DISCUSSION

“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Id. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982), cert. denied, 459 U.S. 970. Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros. Constr., Inc. v. Cranney, supra, at 648. When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

Barrile has moved for partial summary judgment on the sole basis of the claimed preclusive effect of the judgment in the Probate Case. Barrile argues that Cutter is barred from collaterally attacking her status as an heir at law after a final judgment making such a determination was issued by the Probate Court. Cutter asserts that the issue of Barrile’s status as an heir was not actually litigated in the prior case and there was no final judgment issued by the Probate Court. As explained more fully below, Barrile’s motion for partial summary judgment is granted based on the doctrine of issue preclusion, and alternatively, on principles of judicial estoppel.

ISSUE PRECLUSION

“Res judicata is the generic term for various doctrines by which a judgment in one action has a binding effect in another.” Heacock v. Heacock, 402 Mass. 21 , 23 n.2 (1988). The doctrines of “issue preclusion” and “claim preclusion” are encompassed within the term “res judicata.” Kobrin v. Bd. of Registration in Med., 444 Mass. 837 , 843 (2005). Barrile contends that Cutter is barred from relitigating the issue of her status as an heir of Connors by the doctrine of issue preclusion. Issue preclusion “prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies.” Heacock v. Heacock, supra, at 23 n.2. “In order to preclude a party from relitigating an issue the court must conclude that (1) there was a final judgment on the merits in the prior action, (2) the party against whom preclusion is asserted was a party to that final judgment, (3) the issue in the prior litigation was identical to the current issue, and (4) the issue in the prior litigation was essential to the judgment and actually litigated.” Hauer v. Casper, 20 LCR 125 , 129 (2012), quoting Kobrin v. Bd. of Registration in Medicine, supra, at 843-844; see also Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453 , 457 (2006). The judgment from the Probate Court was issued almost thirty years ago, well before the present petition for partition was filed by Barrile in this court. It remains, then, to assess whether the judgment issued in the Probate Case meets the requirements for issue preclusion.

Identity or privity of the parties. While Barrile was a party in the Probate case, Cutter was not. However, collateral estoppel may be applied even if the parties in the two cases are not identical if the party against whom issue preclusion is asserted was in privity with a party to the prior adjudication. Comm’r of the Dep’t of Employment and Training v. Dugan, 428 Mass. 138 , 142 (1998). “A nonparty to a prior adjudication can be bound by it ‘only where [the nonparty's] interest was represented by a party to the prior litigation.’” Massachusetts Prop. Ins. Underwriting Ass’n v. Norrington, 395 Mass. 751 , 754 (1985), quoting Mongeau v. Boutelle, 10 Mass. App. Ct. 246 , 249–250 (1980). Ingalls is Cutter’s father and predecessor in title. As his grantee, her claim is entirely derivative of his status. He was not only a party in the Probate Case, but was the administrator of Connors’ estate, and he is a participant, as an affiant in support of his daughter’s position, in the present action. I find that Cutter is in privity with Ingalls, as her predecessor in title, and that Cutter’s interest was adequately represented by Ingalls through his role as administrator of the estate and as the only other heir at law of Connors. The first prerequisite for a finding of issue preclusion is accordingly established.

Identity of the issues. The issue in the Probate Case, identifying all heirs at law in order to distribute the estate, as well as the identification of the property belonging to the estate, is identical to the issue raised by Cutter in the present action. In the Probate Case, Ingalls filed a petition that identified Ingalls and Barrile as the sole heirs of Connors. The petition, signed by Ingalls under the penalties of perjury, asserts that all the heirs were identified. He did not contest that Barrile was a true heir of Connors, and in fact he represented to the court in the petition that Barrile was Connors’ “daughter.” The Probate Court, relying on Ingalls’ representations, found that Barrile and Ingalls were the sole legal heirs of Connors, and issued a judgment approving the distribution of the estate in equal shares to the two heirs at law. Because Cutter now attempts to relitigate the identity of Connors’ heirs, touching upon the exact issue in the Probate Case, the second condition for application of the doctrine of issue preclusion is also established.

Whether the issue was essential and was actually litigated. Cutter asserts that the doctrine of res judicata does not apply because the status of Barrile as an heir of Connors was not actually litigated and its determination was not essential to the judgment. Cutter maintains that the designation of Barrile as an heir was a subsidiary finding as opposed to an ultimate finding or conclusion, and no evidentiary hearing was held to determine Connors’ heirs. While “preclusive effect should not be given to issues or claims that were not actually litigated in [the] prior action,” an evidentiary hearing or trial is not required before preclusion can apply. Treglia v. MacDonald, 430 Mass. 237 , 241 (1999). The appropriate question is whether the issue was presented to the adverse party with a full and fair opportunity to litigate the issue the first time, or whether other circumstances justify affording the party an opportunity to relitigate the issue. See Comm’r of the Dep’t of Employment & Training v. Dugan, supra, at 143; Green v. Brookline, 53 Mass. App. Ct. 120 , 123 (2001); Alba v. Raytheon Co., 441 Mass. 836 , 844 (2004). As long as the party who should have had an interest in litigating the issue in the first case had an ample opportunity to do so, that party or those with whom he is in privity, may not relitigate the issue in a later case. “[I]t (is) unnecessary…to determine whether (the) claim was actually presented in (the earlier case) because…we believe that this claim was capable of being raised in (the earlier case) and should have been raised in the context of that case.” Bagley v. Moxley, 407 Mass. 633 , 638 (1990).

While there was no evidentiary hearing establishing the heirs of Connors, none was required for the status of Barrile to be actually litigated in the Probate Case. Ingalls had notice of the petition and its contents, given that he filed it as administrator of the estate, and thus, he had a full and fair opportunity to litigate the issue of whether Barrile was an heir in the first case. The judgment approved the first and final account filed by Ingalls under penalty of perjury, showing distribution of the estate in equal shares to Barrile and Ingalls. In order to sustain that judgment, the Probate Court must have found as a fact that Barrile and Ingalls were the legal heirs of Connors. “It is well settled that such implied findings will not be reversed unless plainly wrong.” Petition of Dep’t of Pub. Welfare, 376 Mass. 252 , 256 (1978); see Weston v. Fuller, 297 Mass. 545 , 547 (1937) (entry of decree imports the finding of all facts necessary to support the result). “Like presumptions must be made in favor of the proceedings of [probate courts] as are made in favor of proceedings of other courts of superior and general jurisdiction.” Farquhar v. New England Trust Co., 261 Mass. 209 , 212-213 (1927). The judgment approving the account states that it was entered with “all persons interested having consented thereto in writing-and no objections being made thereto.” This issue was essential in the Probate Case because had Ingalls disputed Barrile’s status prior to the issuance of the Probate Court’s judgment, Connors’ estate may have been settled differently. Because he did not, however, the estate was settled and distributed equally with Barrile and Ingalls both as lawful heirs. Since the Probate Court approved the petition of the administrator without objection, Barrile’s status as a legal heir was determined, establishing the third prerequisite necessary for preclusion. “The rule of res judicata is designed to forestall a plaintiff from getting ‘two bites at the apple.’” Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444 , 452 (1982). To the extent Ingalls failed to fully litigate the issue in the Probate Case, the court “cannot countenance a (party’s) action in failing to plead a theory in (one court) in the hope of later litigating the theory in (another court).” Id.

Finality of the Probate Court’s judgment. The remaining question is whether the Probate Court judgment is final for res judicata purposes. Cutter argues that judgments involving the probate of a will as opposed to the probate of the estate of a person dying intestate should be distinguished for purposes of finality, relying for this argument exclusively on Woodward v. Comm’r of Social Sec., 435 Mass. 536 (2002). Cutter’s reliance on Woodward is misplaced. In Woodward, the Supreme Judicial Court held that a Probate Court judge improperly granted a judgment of paternity on a limited record for children who were conceived with the benefit of preserved sperm of their deceased father. The court held, “[w]here an estate is at issue – which will always be the case where a parent is deceased – notice of the action to establish legal parentage should be given to every other interested party, including potential heirs who would have taken but for the posthumous creation of the children.” Id. at 556. The court did not, as Cutter appears to argue, lay down a rule that judgments are not final in matters of intestacy. Rather, the court held that a judgment would not be final where no notice and opportunity to appear was given to potential heirs. That is not the case here. Cutter’s predecessor in title, Ingalls, not only had notice of the prior action, but instituted it as petitioner. Cutter makes no argument that any other heirs were deprived of an opportunity to be heard, but rather argues that her father, who appeared in the prior action and had an opportunity to contest Barrile’s status as an heir, failed to do so and therefore, she should now be given another opportunity. That Ingalls now claims his failure to question Barrile’s status in the prior action was a “manifest error” on his part does not give him or his daughter the right to relitigate an issue decided by a court of competent jurisdiction nearly thirty years ago.

The principle that a party who has had his day in court is not entitled to another, is no less applicable to a decree or judgment of the Probate Court, whether under will or intestacy, than to judgments of other courts. Agric. Nat’l Bank of Pittsfield v. Bernard, 338 Mass. 54 , 57 (1958). It is well settled that “[a] decree of the probate court within its jurisdiction is good unless it is set aside, and it cannot be attacked collaterally.” Farquhar v. New England Trust Co., supra, at 282. “[S]uch decrees are conclusive upon the courts of common law, and cannot be reversed by writ or error or certiorari; and that they cannot be set aside in equity, even for fraud.” Bloom v. Bloom, 337 Mass. 480 , 482 (1958). “To justify revocation of [a judgment] it is not enough to show that available evidence was not offered, that material contentions were not properly presented, or that the issues were not rightly decided.” Reynolds v. Remick, 333 Mass. 1 , 9 (1955). The doctrine of res judicata is “most important in assuring that judgments are conclusive, thus avoiding relitigation of … questions of law or fact necessary to the judgment in the original action.” Dowd v. Morin, 18 Mass. App. Ct. 786 , 793 (1984), quoting Anderson v. Phoenix Inv. Counsel of Boston, Inc., supra, at 449.

Barrile was determined to be a legal heir of Connors by judgment of the Probate Court in 1987. There can be no question of the jurisdiction of the Probate Court to make such a determination. Any concerns as to the distribution of Connors’ estate could have and should have been addressed during the pendency of the Probate Case, and it was incumbent on Ingalls, as administrator of the estate, to bring any challenge to the disbursement at that time. In reliance on the judgment of the Probate Court, Barrile and Ingalls acted, for almost thirty years, as if Barrile was one of the two lawful heirs of Connors. Cutter cannot now avoid the rule precluding litigation of an issue decided in the Probate Case by attempting to relitigate the issue from a different posture. The judgment in the Probate Court is final for purposes of the application of the principles of res judicata and Cutter is barred from contesting the issue of Barrile’s status as an heir of Connors, and therefore as a tenant in common with respect to the Property, in the present matter.

JUDICIAL ESTOPPEL

Even if Cutter was correct in her argument that the probate judgment is subject to collateral attack, Cutter is barred by the doctrine of judicial estoppel from relitigating whether Barrile is an heir to Connors, because her position contradicts that taken by her father in the probate proceeding. “Judicial estoppel is an equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding.” Blanchette v. Sch. Comm. of Westwood, 427 Mass. 176 , 184 (1998), citing Fay v. Federal Nat'l Mtge. Ass'n, 419 Mass. 782 , 787–788 (1995). “The purpose of the doctrine is to prevent the manipulation of the judicial process by litigants.” Canavan's Case, 432 Mass. 304 , 308 (2000). As an equitable doctrine, judicial estoppel is not to be defined with reference to “inflexible prerequisites or an exhaustive formula for determining [its] applicability.” New Hampshire v. Maine, 532 U.S. 742, 751 (2001). Rather, the doctrine is properly invoked whenever a “party is seeking to use the judicial process in an inconsistent way that courts should not tolerate.” East Cambridge Sav. Bank v. Wheeler, 422 Mass. 621 , 623 (1996). “Application of the equitable principle of judicial estoppel to a particular case is a matter of discretion.” Otis v. Arbella Ins. Co., 443 Mass. 634 , 639-640 (2005), citing New Hampshire v. Maine, supra, at 750.

The petitioner’s father, Ingalls, as administrator of Connors’ estate, represented to the Probate Court, in the petition for administration, that Barrile was one of two “heirs at law or next of kin of deceased” and that Barrile was the “daughter” of Connors. Based on his representations, Ingalls successfully assisted the Probate Court in the distribution of Connors’ estate. In his affidavit in this case, Ingalls alleges that Barrile is not the biological daughter of Connors. Resp. Facts ¶¶ 17-18, Exh. D. Despite Ingalls’ representations to the Probate Court for the administration of his mother’s estate that Barrile was an “heir at law or next of kin” to Connors, and that Barrile was Connors’ “daughter”, Cutter now seeks to prove, through Ingalls’ affidavit, that Barrile’s birth certificate is fraudulent, and that Barrile was neither the biological child of Connors, nor was she adopted by Connors. These assertions by Ingalls, upon which Cutter relies, are in many cases inadmissible hearsay or are otherwise not sufficiently supported. But whether in admissible form or not, they are in any event inconsistent with and directly contradictory to the representations Ingalls made to the Probate Court.

Ingalls argues that his signing of the probate documents attesting to Barrile’s legal status was a “manifest error.” Ingalls Aff. ¶ 16. While a good faith exception to the doctrine has been recognized in the federal courts, Patriot Cinemas, Inc. v. Gen. Cinemas Corp., 834 F.2d 208, 212-213 (1987), that exception cannot apply in the instant case. The statements made in Ingalls’ affidavit that Barrile was not a natural child of Connors, including his assertion that his mother had not been pregnant when she brought a baby girl home when Ingalls was 19 years old, were within his personal knowledge at the time of the probate proceedings. Knowing this, he could have objected to Barrile being listed as an heir prior to the Probate Court reaching a final judgment. In addition, if Ingalls was unsure whether Barrile had been legally adopted, it was his duty as administrator of Connors’ estate to look into the matter further before filing the sworn petition with the Probate Court. Instead, only now, nearly thirty years after the Probate Case, in an action for partition of the Property, does Ingalls contend that he was mistaken and that he was the sole heir to the estate of Connors. Cutter, as a person in privity with Ingalls, cannot rely on his mere assertion of mistake as sufficient to demonstrate his good faith.

Furthermore, it would be inequitable to now require Barrile, who has relied on the Probate Court’s judgment for nearly three decades, to have to defend her status as an heir after such a lengthy passage of time based on Ingalls’ assertion of a position directly at odds with his representations to the Probate Court. The function of judicial estoppel is to protect the integrity of the courts. Thus, as a matter of judicial discretion, I invoke the doctrine of judicial estoppel.

CONCLUSION

For the reasons set forth above, Petitioner’s Motion for Partial Summary Judgment is ALLOWED. Pursuant to Mass. R. Civ. P. 56, partial summary judgment is rendered against Cutter and in favor of Barrile. Accordingly, it is

ORDERED and ADJUDGED that it is established for the purposes of this action, and Respondent Gayle F. Cutter, Trustee of 25 Worcester County Realty Trust, is estopped from denying, that the Petitioner Lesley E. Barrile is the owner of an undivided fifty (50) percent interest, as tenant in common, of the property located at 25 Worcester Court, Falmouth, Massachusetts.

It is further

ORDERED that the court will defer appointment of partition commissioner until May 31, 2016, during which time counsel are to use best efforts to arrive at a written agreement to market and sell or to set off the common property, and to hold all proceeds in escrow pending resolution of this case by the court. If by May 31, 2016, the parties have not agreed in writing to consensual sale or set off of property, and so informed the court, the court will promptly appoint a partition commissioner. Discovery to close October 31, 2016. By that date, parties to file a joint request that pretrial conference be scheduled by the court.

So Ordered.