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16-P-1479                                                  Appeals Court

                     SUSAN SHEA   vs.   MICHAEL CAMERON.


                              No. 16-P-1479.

            Essex.       October 4, 2017. - February 9, 2018.

                 Present:    Agnes, Sacks, & Lemire, JJ.


Practice, Civil, Report, Summary judgment, Stipulation, Fraud.
     Divorce and Separation, Annulment, Jurisdiction. Probate
     Court, Divorce. Jurisdiction, Divorce proceedings. Fraud.
     Emotional Distress. Undue Influence. Unjust Enrichment.



     Civil action commenced in the Superior Court Department on
July 24, 2014.

     The case was heard by Timothy Q. Feeley, J., on a motion
for summary judgment, and the case was reported by him to the
Appeals Court.


     John Taylor for the plaintiff.
     Mikalen E. Howe (Alan K. Posner also present) for the
defendant.


    LEMIRE, J.       This appeal concerns whether a defendant's

alleged fraudulent inducement to marry constitutes a valid civil

cause of action.       The plaintiff, Susan Shea, and the defendant,

Michael Cameron, were married before receiving a judgment of
                                                                     2


annulment which incorporated their joint stipulation of

Cameron's fraud.   Following the annulment, Shea filed a civil

action relating to Cameron's marriage fraud in Superior Court.

Cameron filed counterclaims alleging fraud by Shea regarding

entry of the stipulation and annulment.     Cameron moved for

summary judgment on all of Shea's claims.     After granting

Cameron's motion for summary judgment, the judge reported his

order to this court pursuant to Mass.R.Civ.P. 64(a), as amended,

423 Mass. 1403 (1996), and stayed Cameron's counterclaims.      We

affirm.

    Background.    Shea began a consensual romantic relationship

with Cameron in June, 2005.   By October, 2005, Cameron had moved

into Shea's home, and soon thereafter, the two became engaged.

Shea and Cameron married on September 22, 2007.    In 2010, Shea

transferred title to her home from herself individually to Shea

and Cameron as joint tenants and Cameron was added to the

mortgage.   Over the course of their relationship, Shea and

Cameron exchanged money, shared bank accounts, and worked

together professionally.

    In 2011, Shea discovered that Cameron was having an affair

and subsequently filed for divorce on the grounds of

irretrievable breakdown.   On April 30, 2012, Shea withdrew her

complaint for divorce and filed a complaint for annulment.      At a

deposition related to the annulment proceeding, Cameron admitted
                                                                      3


to being "unable to love [Shea] very early in the marriage" and

that he did not ever believe that Shea was his "one true love."

     On June 7, 2013, Shea and Cameron entered into a joint

stipulation of annulment based on Cameron's fraud, ending the

marriage ab initio.1   Unbeknownst to Cameron, Shea filed a

complaint in Probate and Family Court on June 6, 2013, related

to this stipulated fraud.     Immediately following the entry of

the judgment of annulment, Shea served Cameron with her

complaint as he left the court room.

     Shea's complaint was dismissed by the Probate and Family

Court for lack of subject matter jurisdiction.     Shea then filed

the same claims in Superior Court.     Shea's theory of recovery on

all claims is related to Cameron's false claims of love,

Cameron's emotionally harmful conduct during their relationship,

and Cameron's improper use of their shared finances.     Cameron's

counterclaims allege that but for Shea's deliberate concealment

of her claims, he would not have entered into the stipulation of

annulment.

     The judge entered summary judgment in favor of Cameron on

all eight of Shea's claims.    In his memorandum and decision, the

judge accepted that Cameron made misrepresentations "about the

     1
       The complete joint stipulation reads as follows: "The
parties, Susan E. Cameron, Plaintiff, and Michael J. Cameron,
Defendant, agree to an annulment of marriage on the grounds of
Defendant's fraud as provided by M.G.L. Chapter 207, § 14."
                                                                    4


genuineness of his love and commitment to Shea," but concluded

as a matter of law that the court was unable to intrude into

private and personal relationships and provide remedy for the

alleged harms.   Following the entry of summary judgment the

judge reported his decision to this court under Mass.R.Civ.P.

64(a) as an interlocutory finding and stayed Cameron's

counterclaims.

    Report.   As a threshold matter, we consider the propriety

of the report on which this case comes before us.   A Superior

Court judge is authorized to report a case when "an

interlocutory finding or order made by [him] so affects the

merits of the controversy that the matter ought to be determined

by the appeals court before any further proceedings in the trial

court."   Mass.R.Civ.P. 64(a).   "Interlocutory matters should be

reported only where it appears that they present serious

questions likely to be material in the ultimate decision, and

that subsequent proceedings in the trial court will be

substantially facilitated by so doing."    John Gilbert Jr. Co. v.

C.M. Fauci Co., 309 Mass. 271, 273 (1941).    See Cooney v.

Compass Group Foodservice, 69 Mass. App. Ct. 632, 635 (2007).

    Facially, Shea's eight claims in her amended complaint and

Cameron's five counterclaims appear inextricable.   However, a

closer inspection into the underlying factual circumstances show

that the reported question as to Shea's claims is not material
                                                                   5


to the stayed counterclaims.   Shea's claims rest on the factual

circumstances surrounding Cameron's alleged amatory torts,

alleged emotional harm, and alleged unjust dispossession of

property.   On the other hand, Cameron's counterclaims are based

almost entirely on allegations regarding the parties'

stipulation of fraud and the resulting judgment of annulment.2

Any guidance to the Superior Court on the reported issue will

not materially impact the decision on the stayed counterclaims

and we have some doubt as to whether this case is appropriate

for a report under Mass.R.Civ.P. 64(a).3   See Cusic v.

Commonwealth, 412 Mass. 291, 293-294 (1992).   However, as the

parties have fully briefed the issue and the answers are

reasonably clear, this court can express its view.   See, e.g.,

Brown v. Guerrier, 390 Mass. 631, 632-633 (1983); Morrison v.

Lennett, 415 Mass. 857, 859 (1993).

     Standard of review.   Summary judgment is appropriate where

there are no genuine issues of material fact and the moving


     2
       Cameron's pending counterclaims are (1) fraud by omission,
(2) misrepresentation, (3) breach of fiduciary duty and duty to
act in good faith with fair dealing, (4) unjust enrichment, and
(5) partition of real estate.
     3
       We do not question the judge's finding that an appellate
decision will affect how the parties proceed on the
counterclaims. However, courts should be circumspect in
reporting a civil interlocutory question. See Globe Newspaper
Co. v. Massachusetts Bay Transp. Authy. Retirement Bd., 412
Mass. 770, 772 (1992).
                                                                      6


party is entitled to judgment as a matter of law.      See

Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002).        See

also Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716

(1991).   We review a decision to grant summary judgment de novo,

construing all facts in favor of the nonmoving party.        See

Miller v. Cotter, 448 Mass. 671, 676 (2007).      "[A] party moving

for summary judgment in a case in which the opposing party will

have the burden of proof at trial is entitled to summary

judgment if [it] demonstrates, by reference to material

described in Mass.R.Civ.P. 56(c), unmet by countervailing

materials, that the party opposing the motion has no reasonable

expectation of proving an essential element of that party's

case."    Kourouvacilis, supra.   See Flesner v. Technical

Communications Corp., 410 Mass. 805, 809 (1991).      Hence, the

moving party may satisfy its burden either by submitting

affirmative evidence that negates an essential element of the

opposing party's case or by demonstrating that the opposing

party has no reasonable expectation of proving an essential

element of his case at trial.     Flesner, supra at 809.

     Discussion.    1.   Stipulation of fraud.4   Before reaching

Shea's substantive claims, we address the effect, if any, of the


     4
       Any argument that the judgment of annulment has preclusive
effect on the current litigation is in error. See Heacock v.
Heacock, 402 Mass. 21, 23 n.2 (1988) (explanation of
terminology and doctrines of claim and issue preclusion that
                                                                    7


prior stipulation of fraud on our de novo review.     Generally,

stipulations of fact serve an important function for the

efficiency of the court in ruling on motions for summary

judgment.    See Mitchell v. Walton Lunch Co., 305 Mass. 76, 80

(1940).     "[S]uch stipulations are binding on the parties . . .

and respected by the courts, unless a court determines that to

do so would be improvident or not conducive to justice."

Goddard v. Goucher, 89 Mass. App. Ct. 41, 45 (2016), quoting

from Loring v. Mercier, 318 Mass. 599, 601 (1945).     See Mass. G.

Evid. § 611(g)(1) (2017).     Factual stipulations from prior

trials may even be considered as evidence in subsequent

litigation.    See Household Fuel Corp. v. Hamacher, 331 Mass.

653, 656-657 (1954), citing Wigmore on Evidence § 2593 (3d ed.

1940).

    In contrast to stipulations of fact, courts are not bound

by stipulations of law, especially when the legal stipulations



comprise res judicata). Here, we decline to consider the
doctrine of claim preclusion when the underlying claim is an
action for annulment for the same reasons justifying the Supreme
Judicial Court's analysis declining to apply claim preclusion in
a tort suit when the underlying action is a divorce proceeding.
See id. at 23-25. Additionally, where the only basis for the
judgment of annulment is the stipulation between the parties,
that final judgment cannot have preclusive effect under
collateral estoppel. See Hartford v. Hartford, 60 Mass. App.
Ct. 446, 451 (2004), quoting from Restatement (Second) of
Judgments § 27, comment e (1982) ("[a]n issue is not actually
litigated if it is the subject of a stipulation between the
parties").
                                                                       8


are based on incomplete and misleading facts, incorrect

applications of the law, or are self-serving.     See Goddard,

supra at 46-47.   Accordingly, treating the stipulation of

Cameron's fraud in the annulment case as a legal conclusion

would not be binding in the instant case.     See Swift & Co. v.

Hocking Valley Ry. Co., 243 U.S. 281, 289 (1917) ("The duty of

this court, as of every judicial tribunal, is limited to

determining rights of persons or of property . . . .     No

stipulation of parties or counsel, whether in the case before

the court or in any other case, can enlarge the power, or affect

the duty, of the court in this regard" [quotation omitted]).

    Even if the prior stipulation is a mixed issue of fact and

law, any factual component here must also be disregarded.        See

Goddard, supra at 45-46.   Factual stipulations are context

specific and "[t]he scope of the stipulation is determined by

the circumstances in which it is made and the nature of the

proof required by the issues raised."     Costello v. Commissioner

of Rev., 391 Mass. 567, 570 (1984).     Here, the one-sentence

stipulation omits all necessary information or context

concerning the fraud.   Under these circumstances, we conclude

that any factual component to the stipulation must also be set

aside as "improvident or not conducive to justice."     Children's

Hosp. Medical Center v. Boston, 354 Mass. 228, 233 (1968).       See

Huard v. Forest St. Housing, Inc., 366 Mass. 203, 208-209
                                                                   9


(1974).   Therefore, neither the legal nor factual components of

the parties' stipulation to Cameron's fraud impact our de novo

review of the judge's grant of summary judgment.

     2.   Shea's substantive claims.   Shea's amended complaint

asserts eights claims which can be categorized by their

underlying factual basis.   First, the claims of fraud and deceit

(count II), misrepresentation (count IV), and battery (count

VIII) are each based on alleged false professions of love which

induced Shea to enter into the romantic relationship and

annulled marriage.   The claims of negligent infliction of

emotional distress (count III) and intentional infliction of

emotional distress (count V) are each based on conduct allegedly

committed by Cameron during the annulled marriage which caused

Shea emotional and mental harm.   Finally, the claims of exertion

of undue influence (count I), money had and received (Count VI),

and unjust enrichment (count VII) are each based on Cameron's

use of the parties' shared finances.    We address each type of

claim in turn.

     a.   Count II, count IV, and count VIII.   General Laws

c. 207, § 47A, inserted by St. 1938, c. 350, § 1 (also referred

to as the Heart Balm Act),5 states that a "[b]reach of contract


     5
       The Heart Balm Act refers to both G. L. c. 207, § 47A, and
G. L. c. 207, § 47B. This opinion primarily addresses § 47A.
However, the legislative policy that underlies § 47B, which
abolished the common law actions for alienation of affection and
                                                                  10


to marry shall not constitute an injury or wrong recognized by

law, and no action, suit or proceeding shall be maintained

therefor."   The term "heart balm" itself reflects the

Legislature's public policy decision to no longer consider

judicial remedy appropriate for what is only "an ordinary broken

heart."   Conley v. Romeri, 60 Mass. App. Ct. 799, 805 n.5

(2004), quoting from Note, Heartbalm Statutes and Deceit

Actions, 83 Mich. L. Rev. 1770, 1778 (1985).6   The Heart Balm Act

marks a turning point in our view of marriage as primarily a

property transaction where breach of a promise to marry can

result in monetary damages, to instead recognizing that the

decision to marry is a fundamental right that can be declined

without sanction.   See Obergefell v Hodges, 135 S. Ct 2584,

2595-2596 (2015).   See also Diaz v. Eli Lilly & Co., 364 Mass.

153, 154-155 (1973) (providing history of heart balm actions in

Massachusetts).




criminal conversation, is the same as the stated policy that
underlies § 47A, and many States do not separate the provisions.
See, e.g., Cal. Civil Code § 43.5 (West 2007); N.J. Stat. Ann.
§ 2A:23-1 (West 2010); N.Y. Civ. Rights Law § 80-a (McKinney
2009); Wis. Stat. Ann. § 768.01 (West 2009). For a detailed
discussion on the history of Heart Balm Acts and the prohibition
of amatory torts in the United States, see The Legal Ways of
Seduction, 48 Stan. L. Rev. 817 (1996).
     6
       Shea's argument that this court's Conley decision was in
error because it relied on overturned California case law is
without merit. See Conley, supra at 806 n.7.
                                                                  11


    Not only does G. L. c. 207, § 47A, preclude claims of pure

breach of a marriage contract, it also "abolished any right of

action, whatever its form, that was based upon such a breach,"

including "[a]ctions in tort for fraud."    Thibault v. Lalumiere,

318 Mass. 72, 75 (1945).   This broad reading of § 47A furthers

the legislative intent that courts should not "explore the minds

of" consenting partners in order to "determine their sincerity."

A.B. v. C.D., 36 F. Supp. 85, 87 (E.D. Pa. 1940).    See Thibault,

supra at 74-75; Quinn v. Walsh, 49 Mass. App. Ct. 696, 705

(2000).

    Unlike in a traditional heart balm action, Shea does not

assert that Cameron wronged her by not marrying her; rather, she

asserts that Cameron wronged her in fraudulently inducing her to

marry him.    This argument rests on the principle that Cameron's

express and implied promises of love were knowingly false, and

that but for these professions, she would not have entered into

the romantic relationship which resulted in the alleged harm

suffered.    Without the contract of marriage that followed the

alleged false statements, Shea's claims of fraud would have no

basis.    We conclude that Shea's artful pleadings fail to hide

the fact that these claims, based on events that occurred prior
                                                                      12


to the marriage, are precluded under G. L. c. 207, § 47A, as a

matter of law.7   See A.B., supra.

     Additionally, Shea's claim of battery, while not precluded

under the Heart Balm Act, fails because any alleged fraud by

Cameron was legally insufficient to vitiate Shea's consent to

sexual intercourse.   See Conley, supra at 805-806.     We review

Shea's remaining claims de novo under different factual and

legal theories.

     b.   Count III and count V.     Shea also alleges that the

conduct of Cameron during the course of their romantic

relationship caused Shea emotional distress.      Construing all

facts and inferences in favor of Shea, she fails to prove an

essential element of both intentional and negligent infliction

of emotional distress.

     i.   Intentional infliction of emotional distress.     A claim

of intentional infliction of emotional distress requires:         "(1)

that the defendant intended to inflict emotional distress, or

knew or should have known that emotional distress was the likely


     7
       The Heart Balm Act and this opinion do nothing to abrogate
the abolition of spousal immunity in Massachusetts. See Lewis
v. Lewis, 370 Mass. 619, 621-622 (1976). For example, G. L.
c. 209 specifically authorizes rights of action based on
contract between spouses so long as the contract is not the
marriage itself. See, e.g., Okoli v. Okoli (No. 2), 81 Mass.
App. Ct. 381, 390-391 (2012) (allowing claim of fraud to survive
motion to dismiss against former spouse for entry into in vitro
fertilization contract).
                                                                   13


result of his conduct, . . . (2) that the defendant's conduct

was extreme and outrageous, beyond all possible bounds of

decency, and utterly intolerable in a civilized community, (3)

[that] the actions of the defendant were the cause of the

plaintiff's distress, and (4) [that] the emotional distress

suffered by the plaintiff was severe and of such a nature that

no reasonable person could be expected to endure it."    Quinn,

supra at 706, quoting from Tetrault v. Mahoney, Hawkes &

Goldings, 425 Mass. 456, 466 (1997).   Given the high standard

required to show "extreme and outrageous" conduct, there is

nothing in this record, viewed in the light most favorable to

Shea, that can defeat the summary judgment motion.    See Conway

v. Smerling, 37 Mass. App. Ct. 1, 8 (1994) (outrageous conduct

means "a high order of reckless ruthlessness or deliberate

malevolence that . . . is simply intolerable").

    As previously noted by this court, an adulterous affair

like the one alleged here, "even one which is intended to, or

which the actor should have known would, cause emotional harm"

cannot be deemed "extreme and outrageous."   Quinn, supra at 708.

Equally unavailing of legal remedy is a claim of intentional

infliction of emotional distress based on failure to disclose or

intentional concealment of past sexual or romantic history to a

consensual romantic partner prior to entry into the

relationship, "even if the defendant had created false
                                                                   14


expectations about his future relationship with the plaintiff."

Conley, supra at 804-805.    A thorough review of the record

reveals no other conduct which could not be categorized as

"ingratitude, avarice, broken faith, brutal words, and heartless

disregard of the feelings of others," which although

blameworthy, are not legally compensable.    Id. at 805, quoting

from Prosser & Keeton, Torts § 4, at 23 (5th ed. 1984).       We

conclude that Cameron was entitled to summary judgment on this

claim.

    ii.   Negligent infliction of emotional distress.       "To

recover for the tort of negligent infliction of emotional

distress, a plaintiff must prove:    '(1) negligence; (2)

emotional distress; (3) causation; (4) physical harm manifested

by objective symptomatology; and (5) that a reasonable person

would have suffered emotional distress under the circumstances

of the case.'"    Conley, supra at 801, quoting from Payton v.

Abbott Labs, 386 Mass. 540, 557 (1982).   "[P]laintiffs must

corroborate their mental distress claims with enough objective

evidence of harm to convince a judge that their claims" were

likely genuine.   Sullivan v. Boston Gas Co., 414 Mass. 129, 137-

138 (1993).   The record here is bereft of physical harm

manifested by objective symptomatology, and thus, summary
                                                                  15


judgment on this count was properly granted to Cameron.8   See

Garrity v. Garrity, 399 Mass. 367, 369 (1987).

     c.   Count I, count VI, and count VII.   Shea brings three

individual claims to attempt to recover damages for the exchange

of money and her home between Shea and Cameron over the course

of their relationship.    The underlying factual basis for the

three claims is that Shea would not have relinquished ownership

rights of her real or personal property if not for the coercive

or fraudulent conduct of Cameron.    The record fails to provide a

sufficient basis for either theory, even viewed in the light

most favorable to Shea.

     i.   Money had and received and unjust enrichment.9   "Unjust

enrichment is defined as 'retention of money or property of

another against the fundamental principles of justice or equity

and good conscience.'"    Santagate v. Tower, 64 Mass. App. Ct.

324, 329 (2005), quoting from Taylor Woodrow Blitman Constr.


     8
       Both Conley, supra at 806 n.7, and Doe v. Moe, 63 Mass.
App. Ct. 516, 521 n.6 (2005), contemplate the possibility of a
negligent infliction of emotional distress claim based upon the
negligent transmission of a sexually transmitted disease between
consensual sexual partners. Without further discussion, we note
that by Shea's own testimony she admits to receiving an
inconclusive diagnosis of a sexually transmitted disease.
     9
       Money had and received was originally an equitable claim
for unjust enrichment specific to money and credit. See Cobb v.
Library Bureau, 268 Mass. 311, 316 (1929). The current doctrine
of unjust enrichment is identical and applies equally. See
Metropolitan Life Ins. Co. v. Cotter, 464 Mass. 623, 643 (2013).
                                                                     16


Corp. v. Southfield Gardens Co., 534 F. Supp. 340, 347 (D. Mass.

1982).    Unjust enrichment is also recognized as the traditional

claim for a party who has been deprived of land through fraud.

See State St. Bank & Trust Co. v. Beale, 353 Mass. 103, 105

(1967).   We have extended this principle to fraud between former

spouses for conduct during the marriage.    See Demeter v.

Demeter, 9 Mass. App. Ct. 860 (1980).    However, "[t]he fact that

a person has benefited from another is not of itself sufficient

to require the other to make restitution therefor."     Keller v.

O'Brien, 425 Mass. 774, 778 (1997) (quotation omitted).      Here,

none of the exchanges of money or property between Shea and

Cameron can be considered unjust.    See Santagate, supra at 336

(standard for unjust enrichment is based on reasonable

expectations of party).    Simply showing that Cameron's tax

payments, son's tuition payments, and other expenses came out of

the parties' joint accounts is insufficient context to satisfy

the elements of unjust enrichment especially when those same

records show payments to shared interests.    Accordingly, Shea

could not have satisfied her burden at trial and the claims were

properly disposed of on summary judgment.

    ii.    Undue influence.   "In order adequately to establish a

claim . . . for undue influence, a plaintiff must establish that

the defendant overcame the will of the grantor. . . .     Undue

influence involves some form of compulsion which coerces a
                                                                     17


person into doing something the person does not want to do."

Tetrault, 425 Mass. at 464.     We find nothing in the record

before us to show dominion over Shea's mind suggestive of undue

influence.    Rather, the undisputed evidence shows that Shea was

in full command of her personal affairs and was neither ill,

dependent, nor enfeebled at the time of the transfer of real or

personal property to Cameron.     See Collins v. Huculak, 57 Mass.

App. Ct. 387, 394 n.8 (2003).    Without any basis for the claim

of coercion or fraud sufficient to overcome her will, the judge

properly granted summary judgment.

    3.   Conclusion.    As evidenced here, not all human actions

in the context of the dissolution of a marriage have an avenue

for legal recourse, no matter how much anger, sorrow, or anxiety

they cause.   See Okoli v. Okoli (No. 2), 81 Mass. App. Ct. 386,

389 (2012).   This court respects the difficult work done by the

Probate and Family Court in disentangling marital relationships.

The process of divorce provides an avenue for alimony and the

equitable distribution of property.     By voluntarily withdrawing

her complaint for divorce and entering into a stipulation and

judgment of annulment, Shea chose to forgo that process and her

claims could not survive in Superior Court.     For the reasons

stated above, we uphold the judge's grant of summary judgment

against Shea on each count.

                                      Judgment affirmed.
