American Bd. of Trade, Inc. v. Dun & Bradstreet, Inc., s. 81-070

• Decision Date: 07 April 1982
• Docket Number: 81-159,Nos. 81-070,s. 81-070
• Citation: 122 N.H. 344,444 A.2d 550
• Parties: The AMERICAN BOARD OF TRADE, INC. et al. v. DUN & BRADSTREET, INC.
• Court: New Hampshire Supreme Court

Page 550

444 A.2d 550

122 N.H. 344

The AMERICAN BOARD OF TRADE, INC. et al. v. DUN & BRADSTREET, INC.

Nos. 81-070, 81-159.

Supreme Court of New Hampshire.

April 7, 1982.

Stanley, Tardif & Shapiro, Concord (R. Peter Shapiro, Concord, on the brief and orally), for plaintiffs.

Hollman & Muller and Eleanor S. Krasnow, Manchester (Krasnow on the brief and orally), for defendant.

KING, Chief Justice.

In June and August 1977, the plaintiffs, Arthur N. Economou and the American Board of Trade, Inc., commenced three separate actions against the defendant, Dun & Bradstreet, Inc., in the Merrimack County Superior Court. Two of the actions were "actions at law," while the third action was a petition seeking equitable relief and money damages. Each of the actions sounded in libel and alleged damages in the sum of one million dollars. At that time, the plaintiffs were represented by Attorney Leonard J. Merski of Concord, New Hampshire.

On August 18, 1977, the defendant served the plaintiffs with twenty-eight interrogatories seeking extensive and detailed information. These interrogatories were not answered, and on October 27, 1977, the trial court granted the defendant's request for conditional default, with respect to the two actions at law, pursuant to Rule 36 of the Superior Court Rules. Attorney Merski failed to keep his clients informed of these proceedings. On December 1, 1977, the court granted the defendant's request that the default in the two actions at law be made final.

In February 1978, the defendant filed a petition for default of the equity petition, and the court granted it in March 1978. On March 16, 1978, the plaintiffs discharged Attorney Merski, and four days later, they notified the court of this fact. On March 26, 1978, the plaintiffs filed motions to strike the defaults. After a hearing on these motions, the Master (Keller, C. J. Ret.), denied the motions with respect to the actions at law, but set aside the default on the petition in equity. The master's recommendation was approved on August 4, 1978, by the Trial Court (DiClerico, J.).

Both parties excepted to the master's report. Additionally, the defendant moved to dismiss the petition in equity claiming that the petition did not state a cause of action upon which relief could be granted. By order of the Trial Court (Souter, J.), dated February 9, 1981, the exceptions of both parties were treated as motions to set aside the master's report and were denied. The court ordered that its ruling "constitute[d] a final decision on the merits" in the two actions at law and assigned the defendant's motion to dismiss the petition in equity to a Master (Roger C. Burlingame, Esq.) for recommendations. The master heard the defendant's motion to dismiss the petition in equity on March 26, 1981, and recommended that the motion be granted. His recommendation was approved on April 28, 1981, by the Trial Court (DiClerico, J.), and the plaintiffs appealed to this court. We affirm the trial court's decision to sustain the default on the two actions at law, but reverse its decision to dismiss the action in equity.

In their briefs, which cite far more than one hundred authorities to support their respective positions, the parties place great emphasis on incidental matters. We are concerned, however, with the essential issues and not with the proliferation of incidental legal data and subordinate minutia.

The plaintiffs argue that the trial court erred in refusing to strike the defaults in the two actions at law. We disagree. Rule 36 of the Superior Court Rules states that if interrogatories are not answered within thirty days, a conditional default may be entered in the action. Rule 36 further states that a final default can be entered if the interrogatories are not answered within ten days after notice of the conditional default. In this case, the rule was properly followed, and the plaintiffs have not challenged the court's application of the rule. Rather, the plaintiffs claim Attorney Merski was solely responsible for the failure to answer the interrogatories, and, therefore, the plaintiffs should not have been penalized. The attorney's misconduct in this case, however, did not necessarily compel the trial court to refuse enforcement of its own rules. See Brady v. Duran, 117 N.H. 275, 276-77, 372 A.2d 283, 284-85 (1977). Pursuant to...