Kolailat v. McKennett

• Decision Date: 14 April 2022
• Docket Number: 357248
• Parties: ROLA KOLAILAT, Plaintiff-Appellant, v. LINDSEY MCKENNETT, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

ROLA KOLAILAT, Plaintiff-Appellant, v. LINDSEY MCKENNETT, Defendant-Appellee.

No. 357248

Court of Appeals of Michigan

April 14, 2022

UNPUBLISHED

Washtenaw Circuit Court LC No. 21-000088-CZ

Before: Ronayne Krause, P.J., and Murray and O'Brien, JJ.

Per Curiam.

Plaintiff Rola Kolailat, appeals as of right the order granting summary disposition in favor of defendant, Lindsey McKennett, and prohibiting plaintiff from making future filings without first obtaining leave of the court. For the reasons set forth below, we affirm.

I. BACKGROUND

There is a lengthy history of litigation between the parties to this appeal. In a prior civil suit between the parties, a panel of this Court described the parties' relationship as follows:

[Kolailat] and [McKennett] were in a same-sex relationship between 2005 and 2014, but were never married. During that time frame, the couple decided to have a child, and [McKennett] underwent the process of being artificially inseminated with sperm from an anonymous donor. On February 5, 2010, [McKennett] gave birth to the minor child. While it appears that [Kolailat] helped raise the child and acted as her second parent, there is no dispute that she never adopted the child. Eventually, [Kolailat] and [McKennett] separated . . . . [Kolailat v McKennett, unpublished per curiam opinion of the Court of Appeals, issued December 17, 2015 (Docket No. 328333), p 1.]

In this most recent suit, plaintiff filed a complaint claiming that she was the owner of the sperm used to artificially inseminate defendant in 2010 because she allegedly paid for the sperm. In lieu of filing an answer, defendant moved for summary disposition under MCR 2.116(C)(7) and (8), and requested sanctions under MCR 1.109(E)(6). After a hearing on May 5, 2021, the trial court granted the motion in full, reasoning that there was nothing "alleged [in plaintiff's complaint] that provides a cause of action," and ordering that plaintiff cannot file future pleadings or papers without first obtaining leave from the court. This appeal followed.

II. SUMMARY DISPOSITION

Plaintiff first takes issue with the trial court's decision to grant defendant's motion for summary disposition.

A. STANDARD OF REVIEW

"This Court . . . reviews de novo a trial court's decision on a motion for summary disposition." Dell v Citizens Ins Co of America, 312 Mich.App. 734, 739; 880 N.W.2d 280 (2015). A motion under MCR 2.116(C)(7) is properly granted if, among other things, the action is barred by a prior judgment. A party may, but need not, support a motion under MCR 2.116(C)(7) with affidavits, depositions, admissions, or other documentary evidence. Galea v FCA U.S. LLC, 323 Mich.App. 360, 368; 917 N.W.2d 694 (2018). For a motion under MCR 2.116(C)(7), if no documentary evidence contradicts an allegation in the complaint, the allegation is accepted as true. Id. For a motion under MCR 2.116(C)(8),

[a]ll well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant. A motion under MCR 2.116(C)(8) may be granted only where the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. When deciding a motion brought under this section, a court considers only the pleadings. [Dell, 312 Mich.App. at 739-740 (citation omitted).]

"Conclusory statements, unsupported by factual allegations, are insufficient to state a cause of action." Churella v Pioneer State Mut Ins Co, 258 Mich.App. 260, 272; 671 N.W.2d 125 (2003).

"[T]he application of legal doctrines, such as res judicata and collateral estoppel" are questions of law that are reviewed de novo. Estes v Titus, 481 Mich. 573, 579; 751 N.W.2d 493 (2008). Questions of constitutional law are also reviewed de novo. In re Ferranti, 504 Mich. 1, 14; 934 N.W.2d 610 (2019).

B. DISCUSSION

In plaintiff's first argument, she asserts that the trial court erred when it granted defendant's motion for summary disposition because, according to plaintiff, "[t]he law concerning sperm ownership is clear" that "human sperm constitutes property under the law." This assertion, however, fails to address the basis of the trial court's ruling-the court ruled that plaintiff failed to plead facts establishing a cause of action, ^[1] not that plaintiff could not own the at-issue sperm. In other words, accepting as true plaintiff's assertion that sperm constitutes property that can be owned, it would not be a basis for disturbing the lower court's ruling.

On appeal, plaintiff disavows any notion that she is seeking compensation for allegedly paying for the sperm, stating, "Appellant is not asking for compensation . . . ."^[2] Plaintiff also disavows that she is "asking for the sperm back." While plaintiff is clear about the relief she is not seeking, she is less clear about the relief she is seeking. Although it is unclear, we believe plaintiff is seeking a judgment declaring that she owns the sperm that was used to impregnate defendant because this will, according to plaintiff, grant her custody rights of the child born from the pregnancy.^[3]

With this understanding of plaintiff's claim, the trial court was correct to dismiss plaintiff's complaint under MCR 2.116(C)(7) and (8). First addressing MCR 2.116(C)(8), the trial court correctly concluded that plaintiff fails to state a claim on which relief can be granted because she lacks standing to assert a claim for custody, which can only be accomplished under the Child Custody Act, MCL 722.21 et seq. (CCA), or the equitable-parent doctrine. With respect to the CCA, in a prior opinion involving the same parties addressing a similar issue, a panel of this Court explained why plaintiff lacked standing under that statute to seek custody:

The trial court correctly determined that plaintiff lacked standing to initiate this child custody action. "Generally, in order to have standing, a party must merely show a substantial interest and a personal stake in the outcome of the controversy." Altman v Nelson, 197 Mich.App. 467, 475; 495 N.W.2d 826 (1992). "However, when the cause of action is created by statute, the plaintiff may be required to allege specific facts in order to have standing." Id. Here, the CCA confers standing to initiate child custody actions only upon certain persons; specifically, "parents," "agencies," or designated "third persons." See MCL 722.25(1); Aichele v Hodge, 259 Mich.App. 146, 165; 673 N.W.2d 452 (2003). [Kolailat v McKennett, unpublished per curiam opinion of the Court of Appeals, issued December 17, 2015 (Docket No. 328333), p 2.]

The same panel also explained why plaintiff lacked standing under the equitable-parent doctrine:

If plaintiff were recognized as the child's equitable parent, she would be placed on "equal footing with any other natural or adoptive parent," Soumis v Soumis, 218 Mich.App. 27, 34; 553 N.W.2d 619 (1996), and would be entitled to proceed under the CCA "as a parent, rather than as a third person," Van v Zahorik, 460 Mich. 320, 329; 597 N.W.2d 15 (1999). This Court recently extended the equitable parent doctrine to same-sex couples in light of the United States Supreme Court's decision in Obergefell v Hodges, ; 135 S.Ct. 2584; 192 L.Ed.2d 609 (2015). Stankevich v Milliron, [313 Mich.App. 233; 882 N.W.2d 194] (2015).

However, our Supreme Court has held that "[b]y its terms, [the equitable parent] doctrine applies, upon divorce, with respect to a child born or conceived during the marriage." Van, 460 Mich. at 330. Thus, where a child is not conceived or born within a marital relationship, the equitable parent doctrine is not applicable. Id.; Killingbeck [v Killingbeck, 269 Mich.App. 132, 141-142; 711 N.W.2d 759 (2005)]. In Stankevich, the Court acknowledged the Van Court's refusal to extend the equitable parent doctrine outside the context of marriage. Stankevich, . Relying on Van, this Court held that, in attempting to establish standing pursuant to the equitable parent doctrine, a same-sex couple must prove the existence of valid marriage. Id. at [239-240].

In Stankevich, the parties were married in Canada before the birth of their child. Id. at [235]. Thus, the Court held that plaintiff had standing, and that the equitable parent doctrine would apply provided the elements were proven. Id. at [239-240]. In contrast, in the present case, the parties were never married. Accordingly, plaintiff lacks standing pursuant to Van. [Kolailat v McKennett, unpublished per curiam opinion of the Court of Appeals, issued December 17, 2015 (Docket No. 328333), p 2-3.]

Turning to the trial court's decision to dismiss plaintiff's complaint under MCR 2.116(C)(7), that decision was proper because the complaint is precluded by res judicata. "For res judicata to preclude a claim, three elements must be satisfied: (1) the prior action was decided on the merits, (2) both actions involve the same parties or their privies, and (3) the matter in the second case was, or could have been, resolved in the first." Garrett v Washington, 314 Mich.App. 436, 441; 886 N.W.2d 762 (2016) (quotation marks and citations omitted).

Clearly, plaintiff's claims for custody were already fully litigated between the parties in the prior action. To the extent that plaintiff's current claim-that her ownership of the sperm could give rise to custody rights-was not actually resolved in the prior action, res judicata still applies because the issue clearly could have been raised in the first action, which resolved plaintiff's custody-related claims.

In apparent anticipation of the preclusive effect this Court's prior opinions have on her current case plaintiff appears to now argue that to deny her custody rights would violate her right to equal protection and due process...