Carbone v. Tierney
| Decision Date | 10 December 2004 |
| Docket Number | No. 2003–321.,2003–321. |
| Citation | 864 A.2d 308,151 N.H. 521 |
| Court | New Hampshire Supreme Court |
| Parties | Alfred CARBONE v. Nancy S. TIERNEY, Esquire. |
Charles E. Dibble, P.C., of Contoocook (Charles E. Dibble, on the brief and orally), for the plaintiff.
Upton & Hatfield, L.L.P., of Concord (Russell F. Hilliard and David P. Slawsky, on the brief, and Mr. Hilliard orally), for the defendant.
The defendant, Nancy S. Tierney, appeals a jury verdict in Superior Court (Fitzgerald , J.) finding her liable for legal malpractice in her representation of the plaintiff, Alfred Carbone. We affirm in part, reverse in part and remand.
Tierney's representation of Carbone arose out of a dispute between Carbone and his son, Daniel. In 1994, Carbone purchased a home in Londonderry. Because he is an inventor, he converted a two-car garage on the property into a laboratory, which he used to conduct research and test his inventions. Carbone used two additional buildings on the property for a woodworking shop and for the storage of chemicals.
Daniel lived in Danvers, Massachusetts with his wife, Lisa, and their two children. Daniel visited Carbone on numerous occasions and encouraged him to sell his home and move into their home in Danvers.
After approximately two years of discussions, Carbone entered into an agreement with his son. Carbone agreed to sell his home and give Daniel the proceeds from the sale. Daniel, in turn, would sell his Danvers home, combine the proceeds from the two sales and purchase a bigger home, large enough to accommodate Daniel's family, as well as Carbone and his laboratory. Carbone and his son further agreed that "if this thing didn't work out," Daniel would return Carbone's money.
To effectuate this plan, on September 9, 1996, Carbone transferred the deed to his home to Daniel's wife, Lisa. Later that month, Lisa sold Carbone's home to a third party and collected $69,812.41 at the closing.
Because Daniel and Lisa's home had not yet been sold, Carbone moved into their basement. He stored two or three pieces of laboratory equipment in their garage and put the rest of the equipment in storage.
Carbone found his new living situation to be "nerve-racking [sic ]." As a result, in late October or early November 1996, he told Daniel that he wanted to leave and asked for his money back. Daniel told his father that he could not return the money because he had used it to pay other bills. Because Carbone received only $550 per month in social security benefits and had no other resources, he remained in Daniel and Lisa's basement.
On November 27, 1996, Daniel and Lisa purchased a new home in Danvers. The new home included an apartment for Carbone. It also had a small shed in the yard but, according to Carbone, the shed was not large enough to accommodate his laboratory. Consequently, Carbone purchased a box trailer, placed it on a friend's property and set up his laboratory in the trailer.
After the purchase of the new home, Carbone's relationship with Daniel and Lisa went "[f]rom bad to worse." Carbone had no space for his laboratory and was disturbed by the noisy surroundings. He subsequently moved out of Daniel and Lisa's home.
Approximately one month later, Carbone's friend told him that he had to move the trailer containing the laboratory off the friend's property. Carbone stored some pieces of equipment with other friends and sold, or otherwise disposed of, the rest of the equipment. Eventually, all of the equipment was either sold or destroyed.
In 1998, Carbone hired Tierney to represent him in an action against Daniel and Lisa. Tierney agreed to represent Carbone on a contingency fee basis.
On August 8, 1998, Tierney filed a complaint on Carbone's behalf in the United States District Court for the District of New Hampshire. The complaint alleged diversity of citizenship as the basis for the court's jurisdiction and that the "amount in controversy exceed[ed] $10,000.00 exclusive of interest and costs."
On September 24, 1998, Daniel and Lisa moved to dismiss the complaint. The next day, Tierney sent Carbone a letter informing him that a motion to dismiss had been filed. The letter stated that the motion to dismiss "alleg[ed] no copy of the Complaint was attached with the Summons." Tierney's letter did not mention that the motion to dismiss was also based on the failure to state an adequate amount in controversy. On October 22, 1998, the court dismissed Carbone's complaint for failure to establish subject matter jurisdiction because the complaint failed to allege that Carbone's damages exceeded $75,000—a requirement for federal jurisdiction in a diversity of citizenship action.
On October 27, 1998, Tierney moved to amend the complaint and for late entry. She also filed three objections to the September 24, 1998 motion to dismiss. Two days later, the motions were returned to Tierney with the following notation:
On October 30, 1998, Tierney sent Carbone a second letter which stated:
At the present time, we are in the process of re-serving the complaint. This is being done for the purpose of increasing the requested damage amount to include your laboratory facilities and the like. Needless to say, the other side has filed Motions to Dismiss and we have countered with Objections to said Motions.
On December 2, 1998, Tierney filed a second complaint in the United States District Court for the District of New Hampshire. This time, the complaint alleged that the amount in controversy exceeded $75,000 exclusive of interest and costs. On April 7, 1999, the district court issued an order which, in pertinent part, stated:
Plaintiff had a full and fair opportunity to litigate the jurisdictional issue in the former action. He chose not to appeal the district court's adverse ruling in that action. He cannot avoid the effect of that ruling simply by filing a new action. Accordingly, the case is dismissed without prejudice to plaintiff's right to reinstate his claim in a state court of competent jurisdiction.
Two days later, Tierney sent Carbone a third letter. She informed her client that she had "received notice from the United States District Court for the District of New Hampshire ... indicating they believe the law suit should be brought in the United States District Court for the District of Massachusetts even though there is diversity of citizenship." Tierney told Carbone that she presumed the court believed that Carbone "would have an easier time collecting from [his] son if the Order issued from a Massachusetts based court."
In April 1999, Tierney filed a complaint in the United States District Court for the District of Massachusetts. The complaint alleged diversity of citizenship as the basis for the court's jurisdiction and that the amount in controversy exceeded $75,000 exclusive of interest and costs. On February 9, 2000, the court dismissed the complaint because Tierney had "failed to establish federal jurisdiction" in the United States District Court for the District of New Hampshire.
On June 9, 1999, while the district court complaint was still pending, Tierney filed a complaint in the Massachusetts Superior Court in Essex County. On March 14, 2000, the superior court sent Tierney a form entitled "Notice of Status Review of the Docket." The form stated: "If this report is not completed and returned to the Clerk's Office within [t]wenty days a dismissal will enter and the docket closed out." Tierney completed the form and, on March 16, 2000, she sent it to the superior court by Federal Express. Nonetheless, in April 2000, the superior court dismissed the complaint. It was later discovered that the court had misplaced the form. Tierney, however, did not inquire of the court as to why the case had been dismissed.
Instead, on May 4, 2000, Tierney wrote to the plaintiff. In pertinent part, she wrote:
Your matter was ... brought before the Superior Court. On April 28, 2000, an Order of Dismissal was published and sent to this office. At this time, the case could be appealed to the Supreme Judicial Court. However, I believe the effort would be futile as every court which could have heard the matter has quashed all attempts for the case to be heard. We believe, to appeal this, or any of these decisions, would be fruitless and would be a financial hardship to you.
While Carbone's action against Daniel and Lisa was still pending, Lisa filed for bankruptcy. Carbone contacted Tierney and asked her to represent his interests in the bankruptcy by opposing the homestead exemption that Lisa was seeking and the discharge of the debt that was owed to him. A paralegal for Tierney subsequently sent Carbone a letter outlining the steps that Tierney planned to take to represent his interests in Lisa's bankruptcy proceeding. Tierney, however, did not appear at the first meeting of creditors and did not oppose the homestead exemption. Lisa was discharged in bankruptcy on August 18, 1999.
In September 2000, Carbone filed the instant action claiming that Tierney committed legal malpractice when she represented him in his action against Daniel and Lisa. He moved for summary judgment on the legal malpractice claim, as well as his claim for damages. The trial court ruled that Carbone was entitled to summary judgment on the legal malpractice claim but denied summary judgment with respect to damages.
A jury trial was held in January 2003. The jury returned a verdict in Carbone's favor, awarding $69,812.41 in damages for the loss of his residence and laboratory. It also awarded $105,000 to Carbone for the loss of his laboratory equipment. The trial court subsequently ordered interest to be added to the judgment. See RSA 524:1–b (Supp. 2003) ; RSA 336:1 (Supp. 2003). This appeal followed. We issued an opinion dated August 30, 2004. The plaintiff moved for reconsideration. We granted the motion in part, see Sup.Ct. R. 22, and withdrew our August 30 opinion.
On appeal, Tierney argues that the...
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