Opinion
20-P-1237
01-21-2022
DIRK S. ADAMS v. MIKI LILLIAN GISSELL.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
The panelists are listed in order of seniority.
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
The plaintiff, who is the defendant in a divorce proceeding brought in Montana by his wife, brought this suit in Superior Court against his wife alleging breach of contract and fraud in connection with businesses in which he and his wife are partners. A judge of the trial court dismissed the complaint, stating that the court "lacks subject matter jurisdiction over the complaint, and moreover, would be encroaching upon the jurisdiction of the Montana [c]ourt." Although the judge did not explicitly state in the final clause just quoted that dismissal was proper under the doctrine of forum non conveniens, as well as because of lack of subject matter jurisdiction, we understand that to be the import of her statement. She also said that the "plaintiff's claims against his wife are more properly the subject of a divorce proceeding, which is in fact now pending in Montana." The plaintiff has now appealed.
The plaintiff asks us to take judicial notice that he subsequently filed a counterclaim in the divorce proceeding in Montana for the intentional tort of fraud based on the wife's alleged conduct in connection with one of the companies the parties jointly own, and that, at the urging of the defendant, that claim was dismissed. This is an appropriate matter for judicial notice and we do take notice of those proceedings.
Turning to the merits of the appeal, we think that, strictly speaking, the trial court had subject matter jurisdiction. Accepting the allegations in the complaint as true, it alleged breach of contract and a tort claim over which the courts of the Commonwealth have subject matter jurisdiction. The existence of the pending Montana divorce action does not divest our courts of subject matter jurisdiction.
Nonetheless, we think dismissal was proper under the doctrine of forum non conveniens. At the time the plaintiff filed this action he was already the defendant in a divorce proceeding brought against him by the putative defendant, his wife, over which the Montana court has taken jurisdiction. Although it may be true that the court hearing the divorce action cannot or will not address a tort claim between the parties, the partnership interests in the businesses are property of the parties that may be included in the marital estate by the Montana court and that may be subject to property division by that court. It is possible that some or all of the issues, factual and legal, raised by the plaintiff in the instant action -- including the wife's compliance with the commitments undertaken as part of the alleged partnership agreement, the possible destruction of partnership assets, and her conduct with respect to thereto -- may be resolved by the Montana court in the divorce proceeding, where the court will likely be required to assign ownership interests in the partnership assets to one or another spouse, to determine whether they should be included in the marital estate, and, if so, whether and how they should be divided between the parties in the divorce action. Given the prior filing of the divorce action, it is an appropriate use of the forum non conveniens doctrine to defer to the Montana court which is already exercising jurisdiction.
The "first-filed rule," which also can apply where "where the overlap between two suits is less than complete," and which is not raised by the defendant, might have provided an alternative ground for a stay or dismissal. See Exxon Mobil Corp. v. Attorney Gen., 479 Mass. 312, 329-330 (2018), quoting TPM Holdings, Inc. v. Intra-Gold Indus., Inc., 91 F.3d 1, 4 (1st Cir. 1996).
Judgment affirmed.