UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

W. Scott Trafton

v. Civil No. 14-cv-155-JL Opinion No.

H. Michael Koplove and Lynda A. Koplove

MEMORANDUM ORDER

Relationships between in-laws are notoriously difficult, but

relationships between former in-laws can be even more difficult--

particularly when money is involved. This case, which raises a

question as to the application of judicial estoppel, illustrates

that point. Plaintiff Scott Trafton was married to the daughter

of defendants Michael and Lynda Koplove, who paid several hundred

thousand dollars to have a home constructed for him and their

daughter. Though Trafton claims that he understood those funds

as a gift to him and his wife, he (and she) nonetheless executed

a promissory note, payable to the Koploves and secured by

mortgages on the newly-built home and another property that

Trafton owned going into the marriage. That decision would come

back to haunt him when his wife filed for divorce, and the

Koploves noticed their intent to foreclose one of the mortgages

due to the Traftons’ failure to make payments on the note (even

though, according to Trafton, they had actually rebuffed his

attempts at payment). Trafton responded to the notice by filing this action

against the Koploves in Rockingham County Superior Court. He

advances a number of claims challenging the validity of the

Koploves’ note and mortgages and arguing that the Koploves may

not foreclose. The Koploves removed the action to this court,

see

, which has jurisdiction pursuant to

(diversity), because Trafton is a New Hampshire

citizen, the Koploves are Massachusetts citizens, and the amount

in controversy exceeds $75,000. The Koploves have now moved to

dismiss the complaint, see Fed. R. Civ. P. 12(b)(6), arguing that

Trafton’s claims fail for a number of reasons. Chief among these

is that, in the divorce proceedings, Trafton acknowledged the

existence of the loan and agreed to cooperate in the foreclosure,

and the divorce court accepted these representations. As a

result, the Koploves say, Trafton should be judicially estopped

from taking a contrary position in this case. After carefully

considering the parties’ written submissions,1 the court grants

the motion for exactly that reason.

I. Applicable legal standard

To survive a motion to dismiss under Rule 12(b)(6), the

plaintiff’s complaint must allege facts sufficient to “state a

1 After oral argument had been scheduled in this case, the parties informed the court that they did not want a hearing, so the court has decided the motion solely on the papers. claim to relief that is plausible on its face.” Ashcroft v.

Iqbal,

(2009) (quoting Bell Atl. Corp. v.

Twombly,

(2007)). In ruling on such a motion,

the court must accept as true all well-pleaded facts set forth in

the complaint and must draw all reasonable inferences in the

plaintiff’s favor. See, e.g., Martino v. Forward Air, Inc.,

(1st Cir. 2010). The court “may consider not only the

complaint but also facts extractable from documentation annexed

to or incorporated by reference in the complaint and matters

susceptible to judicial notice.” Rederford v. U.S. Airways,

Inc.,

(1st Cir. 2009). With the facts so

construed, “questions of law [are] ripe for resolution at the

pleadings stage.” Simmons v. Galvin,

(1st Cir.

2009), including whether judicial estoppel operates to bar the

plaintiff’s claims, see, e.g., Payless Wholesale Distrib., Inc.

v. Alberto Culver (P.R.) Inc.,

(1st Cir. 1993).

II. Background2

Trafton, as already mentioned, was previously married to the

Koploves’ daughter, Melanie. Before Trafton and Melanie married,

he owned a home in Dover, New Hampshire, where the couple was to

2 As just noted, this background summary is drawn from the complaint and materials susceptible to judicial notice. Although the parties’ memoranda make a number of additional factual claims, the court cannot consider those claims in ruling on the motion, see, e.g., In re Tyco Int’l, Ltd. Multidistrict Litig.,

, and has thus disregarded them. reside after they wed. Soon after the Traftons married and their

first child was born, however, the Koploves encouraged them to

move to a larger home closer to the Koploves’ own home in

Amesbury, Massachusetts. Although Trafton believed he could not

afford the move, the Koploves told him that they would give him

and Melanie the money to purchase a larger home.

In early 2010, the Koploves paid a $10,000 deposit for a lot

at 8 Terry’s Way in Exeter, New Hampshire, and paid a builder

$50,000 to begin building a home on the property. Later that

year, the Koploves paid approximately $430,000 at a closing on

the newly-constructed home, and a deed to the property was

recorded in the names of Trafton and Melanie. At the closing,

the Koploves also gave the Traftons additional funds. The

plaintiff alleges that he understood all of these expenditures by

the Koploves to be gifts. According to him, at no time was there

any discussion about a loan relationship, and if there had been,

he would have stayed in his home in Dover.

In late 2010, several months after the closing, Michael

Koplove asked the plaintiff to come to the offices of law firm

Ford and Associates, P.A. to “do some paperwork.” There, the

plaintiff was asked to sign a promissory note, payable to the

Koploves, in the amount of $564,500, and two mortgages securing

its payment: one on the Exeter property, and another on the

Dover property (which the plaintiff still owned). Despite his alleged understanding of the funds as “gifts,” the plaintiff

obliged. Although Michael Koplove told the plaintiff not to

worry about payment, and that the note and mortgages were just

“paperwork,” the plaintiff nevertheless attempted to make

payments to the defendants, which they refused. While Michael

Koplove told Melanie to make out $1,000 checks to him, with rare

exceptions, he did not cash them.

The Traftons’ marriage was tempestuous, and Melanie filed

for divorce three times. On the last of these occasions, Melanie

moved in with her parents, and the plaintiff also vacated the

Exeter property. In connection with this divorce proceeding, on

January 17, 2014, Trafton and Melanie executed a stipulation as

to the division of their marital assets and the resolution of

other outstanding issues related to their divorce. In relevant

part, the stipulation, which was also witnessed by counsel for

both parties to the divorce, provided:

The marital home located at 8 Terry’s Way, Exeter, New Hampshire is currently in foreclosure and has been vacated. The parties shall cooperate with the lender to effectuate an auction or short sale of the property.

Trafton and Melanie submitted the stipulation to the 10th Circuit

Court Family Division with a request that the court approve the

stipulation “and incorporate all of its terms and conditions as

part of the Decree of Divorce.” A week later, Trafton completed

a financial affidavit affirming, under oath, that the Exeter

property was encumbered by a debt in the amount of $564,000 owed to Michael Koplove. That affidavit was also submitted to the

10th Circuit Court, which approved the stipulation and entered a

Decree of Divorce adopting and incorporating the stipulation’s

terms in their entirety in early February 2014.

Later that month, the Koploves notified Trafton of their

intent to conduct a foreclosure auction of the Exeter property.

Trafton responded by filing this action, in which he makes claims

against the Koploves for fraudulent inducement, intentional and

negligent misrepresentation, violation of the Consumer Protection

Act,

-A, and breach of contract, and

also asserts counts for injunctive relief and quiet title.3 The

amended complaint seeks an order enjoining the Traftons from

foreclosing, quieting title to the Dover and Exeter properties

and discharging the mortgages on those properties, and awarding

him damages for the Koploves’ allegedly wrongful conduct.

3 The amended complaint also names Melanie as a defendant, and includes a count captioned “Compel” that seeks relief against her. Prior to removal, however, the Superior Court dismissed Melanie from the case with Trafton’s assent, so the count against her is not before this court. The defendants’ motion suggests that the Superior Court also disposed of Trafton’s claims for injunctive relief when, after a hearing on Trafton’s motion for a preliminary injunction against foreclosure, it denied that motion on the basis that Trafton could “be adequately compensated by monetary damages.” Trafton disputes the defendants’ reading of the Superior Court’s order, and this court also questions that reading, so the court assumes that those claims live on (at least for present purposes). III. Analysis

As discussed at the outset, the Koploves’ primary argument

in support of their motion to dismiss is that Trafton is

judicially estopped from advancing his claims challenging the

validity of the note and mortgages, based upon his statements to

the Circuit Court that the Exeter property was in fact encumbered

by a mortgage and was in foreclosure. The doctrine of judicial

estoppel is intended to “safeguard the integrity of the courts”

by “prevent[ing] a litigant from pressing a claim that is

inconsistent with a position taken by that litigant either in a

prior legal proceeding or in an earlier phase of the same

proceeding.” Guay v. Burack,

(1st Cir. 2012)

(internal quotation marks omitted).

There are two generally agreed-upon conditions for the application of judicial estoppel. First, the estopping position and the estopped position must be directly inconsistent, that is, mutually exclusive. Second, the responsible party must have succeeded in persuading a court to accept its earlier position.

(internal quotation marks and citations omitted).4 The court

agrees with the Koploves that both prerequisites are satisfied

here, and that Trafton’s claims must be dismissed as a result.

In the financial affidavit he submitted to the state court,

Trafton attested that the Exeter property was encumbered by a

debt of $564,000 owed to Michael Koplove. In the stipulation he

submitted to the same court, he acknowledged that the property

was in foreclosure and agreed to “cooperate with the lender to

effectuate an auction or short sale of the property.” These

representations are in direct conflict with the positions Trafton

now advances before this court, i.e., that the Koploves’ purchase

4 The parties’ memoranda do not address whether federal or state law should apply in determining whether the doctrine of judicial estoppel applies in this diversity action, and both parties cite a combination of state and federal law. Our Court of Appeals has not taken a definitive position on the issue, but it has suggested that federal law applies when determining the doctrine’s applicability. See Alternative Sys. Concepts, Inc. v. Synopsys, Inc.,

(1st Cir. 2004). Indeed, “every other federal appellate court to have considered the question has held that the application of judicial estoppel in diversity cases implicates a ‘strong federal policy’ warranting reference to federal, rather than state, principles.” Flores-Febus v. MVM, Inc., –- F. Supp. 3d –-,

(D.P.R. Sept. 23, 2014) (citing cases). This order follows suit. The outcome would be the same, however, were the court to apply state, rather than federal, law. New Hampshire law on the topic does differ from federal law inasmuch as it requires a showing that “the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” In re Carr,

(2007); compare Guay,

(“[U]nfair advantage is not a formal element of a claim of judicial estoppel.”). As discussed below, though, that element is present here. of the Exeter property for the plaintiff and Melanie was a gift,

not a loan, and that the mortgages are therefore unenforceable,

through foreclosure or otherwise. See Surreply (document no. 9)

at 1-2 (“The gravamen of Plaintiff’s amended complaint is that

the underlying note is not enforceable and as a result of that

this Court should order that the lien on the Exeter property,

and, therefore, the Dover property, ought to be extinguished”).

Trafton attempts to reconcile his statements to the Circuit

Court with his position in this case, asserting that he “never

took a position as to enforceability of the note in the divorce

court.” Memo. in Supp. of Obj. to Mot. to Dismiss (document no.

6-1) at 4. His affidavit, he says, simply represented that the

note existed, but said nothing about whether, in his opinion,

that document was valid. That distinction is untenable, but,

even if one credits Trafton’s strained characterization of the

affidavit, it is of no moment. Whatever the merits of his

attempt to distinguish a concession as to the existence of a debt

from a concession as to its validity, Trafton also signed, and

submitted to the Circuit Court, a stipulation (the existence of

which his memoranda largely ignore) agreeing that the Koploves

could foreclose the mortgage on the Exeter property, and that he

would cooperate in that process. In so doing, he represented to

the court that the note, and the debt it evidenced, not only

existed, but was valid and enforceable as well. So the first prerequisite for judicial estoppel, inconsistency in a party’s

prior and current positions, is satisfied here.

The second prerequisite is also satisfied, as the Circuit

Court accepted Trafton’s representation as to the enforceability

of the note. Trafton also disputes this conclusion, maintaining

that “the enforceability of the note” was not “a relevant issue

to the divorce,” so the Circuit Court had no occasion to take any

position as to that issue. Pl.’s Surreply (document no. 9) at 2.

Trafton correctly notes that the Circuit Court lacked authority

to rule on the note’s validity. See In re Muller,

(2013) (although “the family division has the authority to

value and divide marital property,” it does not have jurisdiction

to invalidate a third party’s mortgage on marital property).

That the court could not and did not render an opinion on that

issue, however, does not mean that it did not “accept” Trafton’s

representation as to the note’s validity. See Pelletier v. U.S.

Bank Nat’l Ass’n,

(fact that party’s interest

in note “was not–-and could not have been–-adjudicated” in court

where representation was made did not preclude application of

judicial estoppel to that issue).

To the contrary, for a party’s earlier position to be

“accepted” for purposes of judicial estoppel, all that is

necessary is that the earlier court “adopted and relied on the

represented position either in a preliminary matter or as part of a final disposition.” Perry v. Blum,

(1st Cir.

2010). That the Circuit Court “adopted and relied on” Trafton’s

earlier position is beyond question: as noted above, the divorce

decree expressly incorporated the terms of the stipulation he

signed. See Part II, supra.

This was not insignificant. In fulfilling its obligation to

“order an equitable division of property between the parties” to

the divorce,

-a, II, the Circuit

Court would ordinarily take into account the value of the Exeter

property in addition to the parties’ other assets. See Muller,

(“the division of the net equity in a marital

home subject to a mortgage . . . is within the statutory purview

of the family division, as is the division of marital debt”).

Had Trafton not agreed that the Exeter property was subject to a

mortgage and in foreclosure, and that he would cooperate in that

process, the Circuit Court would have done so here, treating the

home as a marital asset. Based on Trafton’s agreement, however,

the court assigned no value to the property in dividing the

marital estate, and allocated no interest in it to either spouse.

So, contrary to Trafton’s argument, the Circuit Court “accepted”

his earlier position for purposes of judicial estoppel. Cf. Kale

v. Obuchowski,

(7th Cir. 1993) (divorce

court “accepted” party’s position that he owned no interest in industrial park when it approved settlement that allocated

marital property, but made no mention of industrial park).

Although this case meets both prerequisites for judicial

estoppel, Trafton nonetheless argues that the court should not

apply the doctrine here for three additional reasons, none of

which are availing.

First, he says that judicial estoppel cannot apply because

the Koploves were not parties to the divorce. See Memo. in Supp.

of Obj. to Mot. to Dismiss (document no. 6-1) at 3. The majority

of courts hold, however, that doctrine applies whether or not the

party invoking it was also a party to the proceeding in which the

inconsistent position was advanced. See 18 James Wm. Moore et

al., Moore’s Federal Practice § 134.33[1], at 134-77 & n.1 (3d

ed. 2014) (citing cases). To be sure, courts in the Fifth and

Eleventh Circuits take the opposite view. See id. at 134-77 &

n.2. Those courts appear to derive their alternative take on the

issue from a 1968 case, Colonial Refrigerated Transp., Inc. v.

Mitchell,

(5th Cir. 1968), in which the Court

of Appeals for the Fifth Circuit held that “judicial estoppel may

be invoked only by a party to the prior litigation or someone

privy to a party” because the doctrine “is designed to protect

those who are misled by a change in position.”

As already noted above, though, the purpose of the doctrine

is not, in fact, to protect litigants–-it “is to safeguard the integrity of the courts by preventing parties from improperly

manipulating the machinery of the justice system.” Guay,

(quoting Alternative Sys. Concepts,

).

Accordingly, as our Court of Appeals has recognized, judicial

estoppel can apply even if a party’s change in position causes no

disadvantage to his adversary.

Because the minority rule

relies on a premise that has been rejected by our Court of

Appeals, this court declines to follow it.

Second, Trafton argues that judicial estoppel cannot apply

because any statements he made to the Circuit Court regarding the

validity of the note were legal conclusions, and “[j]udicial

estoppel will not apply in cases in which only legal conclusions

or opinions are involved.” Surreply (document no. 9) at 3. The

representations Trafton made to the Circuit Court, however, were

not simply legal conclusions or opinions–-they were also factual

statements to the effect that the Exeter property had no value to

the marital estate because it was encumbered by a mortgage that

was about to be foreclosed upon. But even if Trafton’s

characterization of his representations to the Circuit Court is

accepted, he is again incorrect: although “the ‘classic’ case of

judicial estoppel” involves a litigant asserting “inconsistent

statements of fact or . . . inconsistent positions on combined

questions of fact and law,” Patriot Cinemas, Inc. v. Gen. Cinemas

Corp.,

(1st Cir. 1987), the doctrine also “forbids a litigant to repudiate a legal position on which it has

prevailed,” Cont’l Illinois Corp. v. C.I.R.,

(7th Cir. 1993); see also 18 Moore, supra, § 134.30 at 134-68 &

n.8 (citing cases for the proposition that “the doctrine applies

to preclude inconsistent legal assertions”). Indeed, this court

has upheld the application of judicial estoppel based on a

litigant’s statement–-like Trafton’s–-that another party held a

mortgage on his property, rejecting the argument that this was a

“legal conclusion” to which the doctrine could not apply. See

Pelletier,

.

Finally, Trafton contends that the court should abstain from

applying the doctrine here because he would not derive any unfair

advantage from his changed position. If he is successful in this

action, he says, he and his former wife can simply return to the

Circuit Court and ask to have the divorce action reopened so

their assets can be redistributed in light of what he calls the

“newly discovered assets of the equity of the Exeter and Dover

properties.” Surreply (document no. 3) at 3. So, he says, “the

result of this case will not only be fair to Melanie, it will be

a benefit to her.” Memo. in Supp. of Obj. to Mot. to Dismiss

(document no. 6-1) at 5 (emphasis in original).

The court doubts the feasibility of Trafton’s suggested

procedure: “[a] property settlement in a divorce decree is a

final distribution of a sum of money or a specific portion of the spouses’ property and is not subject to judicial modification”

unless it is shown “that the distribution is invalid due to

fraud, undue influence, deceit, misrepresentation, or mutual

mistake,” Sommers v. Sommers,

(1999), none of

which would appear to be present here. Even if it were possible

for the parties to reopen the divorce, the Circuit Court is

charged with equitably (rather than equally) dividing the assets

of the marital estate, in accordance with a host of specific

factors. See

-a. Reopening the

divorce proceeding would, therefore, be no small task. It would

require the Circuit Court to start over from scratch, reweighing

the equities, and even potentially redistributing property from

one party to another. The court fails to see how this result

would be “fair” to Melanie, who would likely have to retain

counsel once again to represent her in the reopened proceeding

(despite her entry into a stipulation with Trafton that purported

to distribute all assets of the estate and resolve all issues

related to the divorce).

In any event, although one of the factors courts frequently

consider in determining whether to apply judicial estoppel is

“whether the party seeking to assert an inconsistent position

would derive an unfair advantage or impose an unfair detriment on

the opposing party,” the Court of Appeals, as already mentioned,

“generally ha[s] not required a showing of unfair advantage” as a prerequisite to the application of the doctrine. Guay,

(citing cases); see also

(“[U]nfair advantage is

not a formal element of a claim of judicial estoppel.”). So the

presence or absence of an unfair advantage to Trafton as a result

of his change in positions does not affect the outcome.

In sum, “[h]aving won a favorable allocation of property in

the divorce case” by agreeing that he would cooperate with the

foreclosure of the Exeter property, Trafton “is stuck with that

proposition in subsequent litigation.” Kale,

.

His claims are barred by the doctrine of judicial estoppel, and

must be dismissed.5

IV. Conclusion

For the reasons set forth above, the defendants’ motion to

dismiss6 is GRANTED. The clerk shall enter judgment accordingly

and close the case.7

5 Trafton’s memoranda do not differentiate between his claims, and appear to concede that if the doctrine of judicial estoppel applies in this case, it bars all of those claims. The court has, therefore, proceeded on that assumption, and has not attempted to make an independent determination of whether the doctrine might bar some of Trafton’s claims, but not others. In light of its conclusion that the doctrine applies here, the court also has not addressed the other arguments the Koploves advance in their motion to dismiss. 6 Document no. 3. 7 Trafton’s counsel is reminded that under Local Rule 5.1(a), filings must “be double spaced except for quoted material.” Neither of Trafton’s memoranda comply with this rule. Because Trafton does not appear to have derived any unearned advantage SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: December 3, 2014

cc: Jonathan M. Flagg, Esq. Richard K. McPartlin, Esq. Edmond J. Ford, Esq.

from his deviation from the rule, the court will take no remedial action, but counsel is advised that the court expects adherence to all applicable rules of procedure in the future.