33 A.3d 1118 (N.H. 2011), 2010-120, Tessier v. Rockefeller

Docket Nº:2010-120.
Citation:33 A.3d 1118, 162 N.H. 324
Opinion Judge:CONBOY, J.
Party Name:Lorraine TESSIER v. Regina S. ROCKEFELLER and another.
Attorney:Vincent A. Wenners, Jr., of Manchester, by brief and orally, for the plaintiff. Nixon Peabody, LLP, of Manchester (Gordon J. MacDonald and Brian D. Duffy on the brief, and Mr. MacDonald orally), for the defendants.
Judge Panel:DALIANIS, C.J., and DUGGAN, HICKS and LYNN, JJ., concurred.
Case Date:September 15, 2011
Court:Supreme Court of New Hampshire

Page 1118

33 A.3d 1118 (N.H. 2011)

162 N.H. 324

Lorraine TESSIER

v.

Regina S. ROCKEFELLER and another.

No. 2010-120.

Supreme Court of New Hampshire.

September 15, 2011

Argued: Feb. 10, 2011.

Page 1119

[Copyrighted Material Omitted]

Page 1120

[Copyrighted Material Omitted]

Page 1121

Vincent A. Wenners, Jr., of Manchester, by brief and orally, for the plaintiff.

Nixon Peabody, LLP, of Manchester (Gordon J. MacDonald and Brian D. Duffy on the brief, and Mr. MacDonald orally), for the defendants.

Page 1122

CONBOY, J.

[162 N.H. 328] The plaintiff, Lorraine Tessier, appeals an order of the Superior Court ( Abramson, J.) granting the defendants' motion to dismiss. We affirm in part, reverse in part, and remand.

The plaintiff brought this action against the defendants, Regina S. Rockefeller and Nixon Peabody, LLP (Nixon Peabody), alleging the following facts. The plaintiff is the wife of Thomas Tessier, an attorney who practiced at the law firm of Christy & Tessier in Manchester. Dr. Frederick Jakobiec hired Attorney Tessier to handle certain estate matters on his behalf. On or about June 26, 2006, Attorney Rockefeller, an attorney employed by the firm of Nixon Peabody, acting on behalf of Dr. Jakobiec, accused Attorney Tessier of misusing and converting substantial assets of the Jakobiec family to his own use.

The plaintiff alleges that Attorney Rockefeller met with Attorney Tessier on numerous occasions and threatened him and, through him, the plaintiff, by demanding an immediate return of the misappropriated assets. Attorney Rockefeller stated to Attorney Tessier that if he repaid the money no further action would be taken against him. If payment was not forthcoming, however, Attorney Rockefeller would report his malfeasance to, among [162 N.H. 329] others, the New Hampshire Supreme Court Attorney Discipline Office. She also threatened that criminal proceedings against Attorney Tessier would follow.

As a result of the threats, the plaintiff alleges that she was forced " under duress" to execute a reverse mortgage on, and the release of her homestead interest in, the family home in Manchester and a settlement agreement dated April 2, 2007. She alleges that over the next two years, the defendants " stripped" her and her husband of their individual and joint interests in all of their tangible assets, including a jointly held vacation property in Vermont. Despite the settlement agreement, and without notice to her or her husband, the defendants reported Attorney Tessier's actions to his law partner, the attorney discipline office, and others. In addition, Dr. Jakobiec hired an attorney to bring suit against Attorney Tessier and to foreclose on the mortgage that was the subject of the settlement agreement.

As a result of the defendants' actions, the plaintiff alleges that she suffered severe emotional and physical distress requiring hospitalization. She also alleges that she has been deprived of her husband's care and comfort because he has suffered emotionally and physically, causing him to seek psychological and medical treatment. The writ contains specific claims for abuse of process, tortious interference with advantageous contractual relationships, breach of the duty of good faith and fair dealing, intentional infliction of emotional distress, negligent infliction of emotional distress, respondeat superior liability, and negligent failure to train and supervise. In addition, as explained below, the factual allegations in the writ set forth a claim for fraudulent misrepresentation.

The defendants moved to dismiss the plaintiff's claims, arguing that she " has not and cannot set forth any legal duty she was owed by the defendants." They argued that Attorney Rockefeller " never met or otherwise communicated with the plaintiff," and, therefore, " it is simply impossible to construct a legal duty Attorney Rockefeller or Nixon Peabody owed to the plaintiff, much less a breach." Following a hearing, the plaintiff unsuccessfully sought to amend her writ. The court thereafter ruled that the writ failed to state a cause of action upon which relief may be granted and dismissed it. This appeal followed.

Page 1123

I. Standard of Review

In reviewing a motion to dismiss, our standard of review is whether the allegations in the plaintiff's pleadings are reasonably susceptible of a construction that would permit recovery. Gen. Insulation Co. v. Eckman Constr., 159 N.H. 601, 611, 992 A.2d 613 (2010). " The court must vigorously scrutinize the [162 N.H. 330] complaint to determine whether, on its face, it asserts a cause of action." Williams v. O'Brien, 140 N.H. 595, 597, 669 A.2d 810 (1995) (emphasis and quotation omitted).

We assume the [plaintiff's] pleadings to be true and construe all reasonable inferences in the light most favorable to [her]. We need not assume the truth of statements in the [plaintiff's] pleadings, however, that are merely conclusions of law. We then engage in a threshold inquiry that tests the facts in the petition against the applicable law, and if the allegations constitute a basis for legal relief, we must hold that it was improper to grant the motion to dismiss.

Eckman Constr., 159 N.H. at 611, 992 A.2d 613 (citations omitted).

As a threshold matter, the defendants argue that we should strike the plaintiff's brief and dismiss her appeal for failure to comply with this court's rules. They argue that, among other deficiencies, the brief does not contain citations to the record, and that the plaintiff mischaracterizes what occurred in the trial court proceedings, asserts " facts" that confuse the roles of the parties, and alleges " facts" not pleaded or alleged in the plaintiff's writ or before the trial court. Regardless of the merits of the defendants' assertions, however, we decline to bar the plaintiff's appeal. Our task is to test the facts as alleged in the plaintiff's writ against the applicable law and we will limit our inquiry accordingly.

The plaintiff argues that the writ sets forth sufficient facts to support the alleged causes of action. With respect to the claims based on fraudulent misrepresentation, negligent infliction of emotional distress, and respondeat superior liability, we agree.

II. Count I

The trial court read count I of the plaintiff's writ as " simply a recitation of the facts underlying the plaintiff's allegations" and concluded that it " does not set forth any cause of action." We disagree, and hold that count I states a cause of action for fraudulent misrepresentation.

The plaintiff argues that she " clearly set forth a claim" for duress or fraud. She also argues that her prayers for relief based upon duress and fraud are equally clear and pray for the remedies of rescission and compensatory damages. The plaintiff quotes from her writ where she prays that the court:

... Find as a matter of fact and of law that [the] plaintiff's payments were made to the defendants involuntarily and as a [162 N.H. 331] result of duress, abuse of process and in breach of contract and of the defendants'[ ] duties of good faith and fraudulently and that the defendants be compelled to return to the plaintiff those sums that they wrongfully extorted from her;

... Find as a matter of fact and of law that the settlement agreement, and other monies paid to the defendants, are rescinded on the grounds that the same were obtained under duress and that the moneys paid, property sold, and promissory notes and mortgage be declared void ab initio and [the] plaintiff restored to her status quo ante or, alternatively, that the defendants pay [the] plaintiff compensatory damages.

Page 1124

A. Duress

In New Hampshire, a contract entered into under duress is voidable and thus duress is a defense to a breach of contract claim. See, e.g., In re Estate of Hollett, 150 N.H. 39, 42, 834 A.2d 348 (2003); King Enterprises v. Manchester Water Works, 122 N.H. 1011, 1013, 453 A.2d 1276 (1982); Davis v. Smith, 68 N.H. 253, 254, 44 A. 384 (1894). The plaintiff's writ alleges that Attorney Rockefeller's promises not to report her husband's misconduct and her threats of criminal prosecution against him unless the plaintiff returned the money her husband stole induced the plaintiff under duress to enter into the settlement agreement with Dr. Jakobiec. However, even if we agree that the facts set forth in the writ establish duress, the plaintiff cannot sustain a cause of action seeking contract damages against these defendants.

Although the plaintiff claims in her writ that she paid money and property to the defendants pursuant to the settlement agreement, it is undisputed that the settlement agreement expressly provides that the assets were to go either to Dr. Jakobiec or to Attorney Rockefeller as trustee of a trust for his benefit. Because there is no allegation that the defendants received any of the assets transferred under the settlement agreement and because the defendants were not parties to the settlement agreement, there are no grounds for contract damages against them. Rather, any such claim would properly be against Dr. Jakobiec, who is not a named party to this lawsuit. Accordingly, we affirm the trial court's ruling that the plaintiff cannot sustain a cause of action seeking contract damages against the defendants arising out of the settlement agreement because there was no contract between the plaintiff and the defendants.

B. Fraudulent Misrepresentation

" ‘ [O]ne who fraudulently makes a misrepresentation ... for the purpose of inducing another to act or to refrain from action in reliance upon [162 N.H. 332] it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation.’ " Gray v. First NH Banks, 138 N.H. 279, 283, 640 A.2d 276 (1994) (quoting Restatement (Second) of Torts § 525, at 55 (1977)). " The tort of intentional misrepresentation, or...

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