Averill v. Cox
| Decision Date | 31 October 2000 |
| Docket Number | No. 97–819.,97–819. |
| Citation | 145 N.H. 328,761 A.2d 1083 |
| Parties | Richard AVERILL v. Paul R. COX & another. |
| Court | New Hampshire Supreme Court |
Charles E. Dibble, P.C., of Contoocook, (Charles E. Dibble, on the brief, and orally), for the plaintiff.
McLane, Graf, Raulerson & Middleton, P.A., of Manchester, (Jack B. Middleton and Scott H. Harris, on the brief, and Mr. Middleton orally), for the defendants.
The plaintiff, Richard Averill, appeals the Superior Court's (Gray , J.) orders granting the motion to dismiss filed by the defendants, Paul R. Cox and the law firm of Burns, Bryant, Hinchey, Cox & Rockefeller, P.A., and denying his motion for production of his case file. The plaintiff contends that the court erred by: (1) ruling that attorneys are per se exempt from the New Hampshire Consumer Protection Act (Act), RSA ch. 358–A (1984) (amended 1986, 1989, 1996, 1997, 1999); (2) finding that the parties are bound by an arbitration clause in their fee agreement; (3) finding his negligence and intentional tort claims to be fee disputes and therefore governed by the arbitration clause; and (4) refusing to order the defendants to produce his case file and trust account information. We affirm in part, reverse in part, and remand.
The relationship between the plaintiff and the defendants spans more than a decade and involves numerous transactions. We recite, however, only the relevant facts pled in the plaintiff's writ, see ERG, Inc. v. Barnes, 137 N.H. 186, 190, 624 A.2d 555, 558 (1993), or provided in the record on the motion to produce.
Due to the onset of severe depression in October 1985, the plaintiff was unable to continue working as a car salesman at Dreher–Holloway. Beginning in 1986, Attorney Cox represented him in a workers' compensation case against the dealership. At the outset of his representation, Cox and the plaintiff entered into an oral fee agreement under which Cox would be paid $85.00 per hour. In 1989, the parties changed the original fee agreement to a one-third contingency fee. The new agreement allowed either party to demand that any fee dispute be submitted to binding arbitration before the New Hampshire Bar Association's fee dispute committee.
After numerous appeals, including one to this court, see Averill v. Dreher–Holloway, 134 N.H. 469, 593 A.2d 1149 (1991), the plaintiff was awarded workers' compensation benefits totaling $215,494.91. In March 1992, Cox filed a motion with the superior court for attorney's fees and costs for the period between January 1986 and March 2, 1992, pursuant to RSA 281–A:44 (Supp.1992) (amended 1993). Before a ruling was made, the plaintiff received a check from Dreher–Holloway for $9,774.67, which, at Cox's request, was endorsed to his law firm and deposited in the firm's trust account. The trial court subsequently awarded Cox $70,000 in attorney's fees and $3,010.10 in expenses for the period between April 14, 1987, and March 2, 1992. In July 1992, Cox sent the plaintiff a check for $1,399.80, representing that it constituted the amount remaining from a check the plaintiff had endorsed to the firm, but did not provide him with an accounting of the amount retained by the firm.
In 1993, the plaintiff and Dreher–Holloway reached a lump sum settlement of $115,000 for all past and future benefits. Based on this settlement, Cox successfully applied to the department of labor for an additional $23,000, representing the contingency fee portion of the $115,000. In so doing, he did not inform the plaintiff of any countervailing arguments under the contingency fee agreement or advise him to seek independent counsel on the issue. Cox then withheld $11,000 of the settlement proceeds to pay two of the plaintiff's medical bills. In return, Cox received $3,400 from the medical payees for collecting this money from the plaintiff. Before the plaintiff received the net settlement proceeds, an additional $5,193.24 was deducted from the firm's trust account to cover unenumerated "services and expenses."
The plaintiff sued the defendants, alleging breach of contract, negligence, conversion, and violations of the Consumer Protection Act. In preparation for his suit, the plaintiff asked the defendants to produce "a complete copy of the entire contents of each and every file ever maintained by [them] in the course of representing the plaintiff," and a complete accounting of all trust accounts. The defendants objected, and the superior court denied the motion to produce as "extremely overbroad and bordering on vexation." The plaintiff's motion to reconsider was denied. The defendants then moved to dismiss. The trial court granted the motion, ruling that attorneys are per se exempt from the Consumer Protection Act, and that the remaining claims were governed by the fee agreement's arbitration clause. The plaintiff appeals the trial court's rulings on the motion to produce and the motion to dismiss.
The plaintiff argues that the trial court erred in ruling that attorneys are per se exempt from the Consumer Protection Act, see RSA ch. 358–A (1995), and thus dismissing his claims under the Act. He argues that the Act only exempts the "non–commercial" aspects of the practice of law, while the defendants assert that attorneys are not subject to liability under the Act given the exemption in RSA 358–A:3, I (1995). "The applicability of the Consumer Protection Act involves a matter of statutory construction, and we begin our analysis by considering the plain meaning of [its] words...." Hughes v. DiSalvo, 143 N.H. 576, 577, 729 A.2d 422, 423–24 (1999).
The Act forbids "any unfair method of competition or any unfair or deceptive act or practice in the conduct of any trade or commerce within this state." RSA 358–A:2 (1995). It "is a comprehensive statute whose language indicates that it should be given broad sweep, [but] it is not unlimited in scope." Hughes, 143 N.H. at 578, 729 A.2d at 424 (). Although the Act does not exempt any specific profession or occupation from its purview, it expressly excludes "[t]rade or commerce otherwise permitted under laws as administered by any regulatory board or officer acting under statutory authority of this state or of the United States." RSA 358–A:3, I. Since 1986, we have articulated two competing interpretations of this exemption. Compare Rousseau v. Eshleman, 128 N.H. 564, 519 A.2d 243 (1986) (Rousseau I ), reh'g denied , 129 N.H. 306, 529 A.2d 862 (1987) (Rousseau II ) with Gilmore v. Bradgate Assocs., Inc., 135 N.H. 234, 604 A.2d 555 (1992).
In Rousseau I , we held that the practice of law fell within the purview of the statutory exemption, RSA 358–A:3, I, because it is subject to regulation by the supreme court through its committee on professional conduct (committee), "a regulatory board acting under statutory (and constitutional) authority of this State." Rousseau I , 128 N.H. at 567, 519 A.2d at 245. In Gilmore , we held that RSA 358 A:3, I, exempts only transactions which are expressly permitted by any statutorily authorized regulatory board or officer. Gilmore, 135 N.H. at 239, 604 A.2d at 557. We reasoned that, given the broad purpose of the Act, "neither the legislature nor the Rousseau [I] court could have intended to exclude from the protection of the act the large number of industries which are subject to regulation in this State simply because the legislature has provided for regulation of that industry within a statutory framework." Id. at 238, 604 A.2d at 557. Because the disputed actions of the defendant real estate and condominium developers and sellers were not expressly permitted under the statutes designed to regulate the real estate and condominium industries, see RSA ch. 331–A (1995 & Supp.1999); RSA ch. 356–B (1995 & Supp.1999), we held that the transactions were not exempt, see Gilmore, 135 N.H. at 239, 604 A.2d at 557.
Our interpretations of RSA 358–A:3, I, in Rousseau I and Gilmore are in conflict. Rousseau I focuses on whether a trade or commerce is subject to a regulatory board or officer authorized by statute, while Gilmore focuses on whether a particular transaction is otherwise permitted by a statutorily authorized regulatory board or officer. The plaintiff challenges the continuing vitality of Rousseau I .
Today, we reaffirm the interpretation of the statutory exemption provided by RSA 358–A:3, I, as articulated in Rousseau I and overrule Gilmore . The Gilmore court limited the reach of the statutory exemption to actions that are expressly permitted by a regulatory board or officer. See Gilmore, 135 N.H. at 239, 604 A.2d at 557 (Horton, J., concurring). This reasoning produces a troubling result because it is difficult to envision any commercial transaction which is prohibited by the Consumer Protection Act but expressly permitted by a statutorily authorized regulatory body. See id. at 241, 604 A.2d at 559 (Horton, J., concurring). Because we presume that the legislature would not "enact statutory language that would lead to an absurd result," Atwood v. Owens, 142 N.H. 396, 398, 702 A.2d 333, 335 (1997), we now reject the reasoning articulated in Gilmore , see Gilmore, 135 N.H. at 239, 604 A.2d at 557.
We also reaffirm the holding of Rousseau I that the practice of law falls within the scope of the exemption in RSA 358–A:3, I. See Rousseau I, 128 N.H. at 567, 519 A.2d at 245. As we have previously determined:
To continue reading
Request your trial