Notti v. Hoffman, Supreme Court No. S-17560

CourtSupreme Court of Alaska (US)
Writing for the CourtCARNEY, Justice.
Citation513 P.3d 245
Parties Cynthia J. NOTTI, Appellant, v. David G. HOFFMAN, Appellee.
Docket NumberSupreme Court No. S-17560
Decision Date15 July 2022

513 P.3d 245

Cynthia J. NOTTI, Appellant,
David G. HOFFMAN, Appellee.

Supreme Court No. S-17560

Supreme Court of Alaska.

July 15, 2022

Daniel W. Hickey, Gruenstein, Hickey, Havelock & Duffy, Anchorage, for Appellant.

Mera Matthews, Cashion Gilmore LLC, Anchorage, for Appellee.

Before: Bolger, Chief Justice, Winfree, Maassen, Carney, and Borghesan, Justices.


CARNEY, Justice.


A divorcing couple settled their property dispute by executing a settlement agreement that included a litigation waiver. The superior court accepted the settlement five months later. The woman subsequently sued her former husband, alleging tort claims based upon actions taken in the months between the time the agreement was executed and when it was accepted. The superior court granted the man's motions to dismiss and for summary judgment. The woman appeals. We agree with the superior court that one of the torts alleged by the woman does not exist in Alaska, and we affirm the superior court's order dismissing that claim. But because the settlement agreement was effective between the parties when signed, even though it was subject to court approval, we reverse the superior court's grant of summary judgment regarding the other torts and remand for further proceedings on those issues.


A. Facts

Cynthia Notti and David Hoffman married in 2012. Their relationship was tumultuous; Hoffman repeatedly initiated divorce proceedings. After two reconciliations Hoffman initiated divorce proceedings for a third time in November 2015. The superior court scheduled a hearing in the matter for May 2016. In December 2015 Notti and Hoffman reached an agreement to settle the division of marital property. The settlement agreement also contained a litigation waiver. The waiver stated:

Each party warrants that he or she, and any of his or her respective heirs, personal representatives or assigns, releases and discharges the other party, his or her respective heirs, personal representatives and assigns, from any and all claims and demands of every kind, nature and description, whether sounding in tort, contract, or equity, whether past, present, or future. The parties acknowledge that this agreement is intended to be a full, complete,
513 P.3d 247
and final settlement and release, and that neither party will at any time hereafter make or attempt to make any further claim against the other party, whether known or unknown at the time this agreement is executed.

Notti and Hoffman each signed the agreement, which was "[e]xecuted at Anchorage, Alaska this 31st day of December 2015" before a notary.

Hoffman asserts that he and Notti "continued to communicate amicably" after the settlement. Notti disputes this, claiming that Hoffman continued to contact her seeking sex, which she refused unless he was "fully" committed to reconciling and "all in" on the marriage.

On March 28, 2016 Notti and Hoffman went to dinner and then had sex. Hoffman claims Notti initiated the sexual encounter. Notti disagrees, asserting that she agreed to engage in sexual relations only after Hoffman told her he was "all in" and put his wedding ring back on his finger. The following morning, Hoffman drove Notti to the airport for a previously planned vacation.

Notti returned from her trip on April 10; Hoffman picked her up from the airport. Notti claims that Hoffman informed her that he had not meant what he said on March 28, that he did not intend to reconcile, and that their encounter was "just sex" that "didn't mean anything" to him.

In the weeks before their May divorce hearing, Notti repeatedly told her attorney that Hoffman had "raped" her and that she believed she could sue him. Notti's attorney made Hoffman's aware of the rape allegation, but did not discuss any course of action based on the allegation. The settlement was modified to address concerns raised during the attorneys’ discussions, but no changes were made with respect to the litigation waiver.

The settlement agreement, with Notti's and Hoffman's December 2015 signatures, was presented to the court at the May hearing. The parties advised the court that as a result of their continued discussions some modifications were necessary. The modifications were then made on the record; none were made to the litigation waiver.

The superior court accepted the settlement agreement, finding that "[t]he purpose of [the] agreement is to resolve all of the issues in this case" and that "the parties’ agreement will accomplish that purpose." The court concluded that, as modified, the agreement was a "fair and equitable way to divide the marital estate" and ordered the estate divided as indicated in the agreement. Before entering the decree of divorce, the court specifically found that "[b]oth parties had sufficient time to think about [the agreement] and sufficient information" regarding "their rights and responsibilities under the agreement" and "the legal consequences of what they were doing."

B. Notti's Civil Suit

A month later Notti called Hoffman to tell him she was going to file a civil suit for "borderline rape." On March 27, 2018 Notti filed a complaint alleging three causes of action arising from the March 28, 2016 encounter. She later amended the complaint to allege sexual assault, which she termed "rape by fraud"; misrepresentation; and intentional infliction of emotional distress.

Hoffman answered in June, denying all claims. He moved for summary judgment in late December, arguing that Notti's claims were barred by the litigation waiver in the settlement agreement.

Notti responded with a cross-motion for partial summary adjudication, asserting that her lawsuit was not barred by the litigation waiver and "that no genuine issue of material fact exist[ed] to the contrary." In his response to Notti's cross-motion, Hoffman also moved to dismiss Notti's rape by fraud claim for failure to state a claim. He argued that the tort did not exist in Alaska. Notti opposed the motion to dismiss. The superior court scheduled oral argument on all of the pending motions in May 2019.

C. Decision On Motions

In a written decision following oral argument, the superior court first addressed Hoffman's motion to dismiss. After "assum[ing] for purposes of a motion to dismiss[

513 P.3d 248

] that Hoffman falsely stated that he had decided to remain married on Notti's terms," the court found that Notti's claim was "not actionable." The court's decision hinged on the distinction between "fraud in fact" and "fraud in the inducement." The court first concluded that fraud in fact — such as impersonating another in order to have sex1 — would be actionable because it involves "outright lies" that go "to the very definition and nature of the act for which one gives consent." In contrast, fraud in the inducement is not actionable because it could cover "a vast array of assertions made by a person who is exploring the possibility of sexual activity with another." The court remarked that such communications "are almost by definition efforts to induce." The court determined that it was not necessary to "craft a definitive boundary" between the two types because "Hoffman's assertion that he wanted to remain in the marriage ... is far from an imposter's deception about basic identity" and thus Notti's claim was "not actionable."

The superior court then turned to Hoffman's motion for summary judgment. The court explained that it would first determine the date on which the agreement took effect because that would determine whether and how it was intended to apply to the March 2016 conduct. If the agreement took effect when the parties signed it in December 2015, the court would have to decide whether the release applied to subsequent misconduct. And if the agreement took effect when the divorce decree was entered in May 2016, the court would have to determine if the release applied to conduct that happened after it was signed but before the court entered the divorce decree.

The court concluded that the settlement agreement took effect in May 2016 when it was accepted and made part of the divorce decree with the finding that "the parties’ settlement agreement ... is a fair and equitable way to divide the marital estate." The court based its conclusion on its statutory power to effectuate divorce and its "affirmative obligation to ‘fairly allocate the economic effect of divorce.’ "2 It reasoned that this obligation requires a superior court to "evaluate and approve a proposed property settlement." The December 2015 agreement therefore did not become enforceable until the superior court approved it after hearing from the parties.

The superior court also found that Notti and Hoffman knew the settlement agreement was not final when they signed it in December 2015 because each of them agreed to revisions between December and the May hearing. The court found that the time between their "tentative agreement and the trial court's approval of it ... converted the conduct of March 2016 from a future (and obviously unknown) event (from the perspective of...

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