Daigle v. City of Portsmouth

• Decision Date: 31 August 1993
• Docket Number: No. 91-515,91-515
• Citation: 630 A.2d 776,137 N.H. 572
• Parties: Dale A. DAIGLE v. CITY OF PORTSMOUTH.
• Court: New Hampshire Supreme Court

Page 776

630 A.2d 776

137 N.H. 572

Dale A. DAIGLE v. CITY OF PORTSMOUTH.

No. 91-515.

Supreme Court of New Hampshire.

Aug. 31, 1993.

Gallagher, Callahan & Gartrell, P.A., Concord (Michael R. Callahan, on brief and orally, and David A. Garfunkel on the brief), and Dale A. Daigle, pro se, joined the brief, for plaintiff.

Devine, Millimet & Branch, P.A., Manchester (George R. Moore, on brief and orally, and James M. Costello on the brief), and McLane, Graf, Raulerson & Middleton, Concord (Jack B. Middleton, on brief and orally, and Michael J. Quinn on the brief), and Broderick & Dean, Manchester (John T. Broderick on the brief), for defendant.

BATCHELDER, Justice.

The plaintiff appeals from the Superior Court's (Gray, J.) approval of the Master's (Bean, J.) recommendation to award attorney's fees to the defendant. We affirm in part, reverse in part, and remand for further proceedings.

Twelve years have passed since the events giving rise to the underlying litigation. This appeal adds yet another and hopefully the final chapter to the proceedings.

The first jury trial in litigation between Daigle and the City of Portsmouth concluded in December 1984 with a $500,000 award in favor of the plaintiff Daigle. The second jury trial, between Daigle and Portsmouth police officer Al Pace, concluded in December 1985 with a verdict for defendant Pace. This court affirmed the verdicts in both cases. See Daigle v. City of Portsmouth, 129 N.H. 561, 534 A.2d 689 (1987) (Daigle I ).

In 1987, plaintiff's attorneys, Bernard Robertson and Stephen Jeffco, moved for sanctions against the city and its attorneys Paul Cox, Stephen Gaige, and Robert Sullivan. The motion alleged "willful and systematic withholding of discoverable material" during the litigation and was denied. The plaintiff appealed to this court, and based on the record presented, we remanded for an evidentiary hearing to determine the merits of the allegations. Daigle v. City of Portsmouth, 131 N.H. 319, 553 A.2d 291 (1988) (Daigle II ).

In the meantime, Attorney Robertson filed a professional misconduct complaint against the three defense attorneys based on the alleged discovery abuses. The complaint was filed with the professional conduct committee of this court. The defense attorneys' answer to the complaint was treated by the committee as a cross-complaint against Robertson. The charges against the defense attorneys were dismissed, and Robertson was found guilty of violating Rules of Professional Conduct 4.4 and 8.4. This court affirmed those findings in Robertson's Case, 137 N.H. 113, 626 A.2d 397 (1993).

Pursuant to this court's remand in Daigle II, Judge Bean, acting as master, held a six-day evidentiary hearing in May 1989. The plaintiff's motion for sanctions was denied, and the master's decision was approved by the Superior Court (McHugh, J.) and affirmed by this court, Daigle v. City of Portsmouth, 133 N.H. 498, 577 A.2d 1236 (1990) (Daigle III ). Subsequently, the defendant city filed a motion for attorney's fees incurred in defending the allegations of discovery misconduct, which was granted by Judge Bean after a hearing. The Superior Court (Coffey, J.) approved $133,187.60 in attorney's fees, and this appeal followed.

The material question before us is whether the award of attorney's fees was an abuse of the trial court's discretion. Exceptions to the rule that each party to a lawsuit bears responsibility for his or her own attorney's bill include instances "where litigation is instituted or unnecessarily prolonged through a party's oppressive, vexatious, arbitrary, capricious or bad faith conduct," St. Germain v. Adams, 117 N.H. 659, 662, 377 A.2d 620, 623 (1977), and cases in which parties "are forced to litigate against an opponent whose position is patently unreasonable." Keenan v. Fearon, 130 N.H. 494, 502, 543 A.2d 1379, 1383 (1988). "In evaluating the trial court's ruling on this issue, we must first keep in mind the tremendous deference given to a lower court's decision on attorney's fees." Adams v. Bradshaw, 135 N.H. 7, 16, 599 A.2d 481, 487-88 (1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1560, 118 L.Ed.2d 208 (1992). In applying the abuse of discretion standard, we "look[ ] for some support in the record for [the] trial court's decision." Maguire v. Merrimack Mut. Ins. Co., 133 N.H. 51, 54, 573 A.2d 451, 453 (1990).

We dispose at the outset of the plaintiff's argument that this court's decision in Robertson's Case, 137 N.H. at ----, 626 A.2d at 399, requires the application of collateral estoppel and thus the reversal of the award of attorney's fees. Collateral estoppel has no bearing when, as here, the burden of proof in the prior proceeding is higher than the burden in the subsequent proceeding. In re Three Video Poker Machines, 129 N.H. 416, 420, 529 A.2d 905, 908 (1987). Compare Otis' Case, 135 N.H. 612, 613, 609 A.2d 1199, 1200 (1992) (violation of Rules of Professional Conduct must be established by clear and convincing evidence) with Maguire v. Merrimack Mut. Ins. Co., 133 N.H. at 54, 573 A.2d at 453 (award of attorney's fees committed to the sound discretion of the trial court).

Evidence introduced by the plaintiff at the sanctions hearing in support of the allegations of discovery misconduct included all of the evidence summarized by this court in Daigle II. See Daigle v. City of Portsmouth, 131 N.H. at 321-25, 553 A.2d at 292-95. Based on that evidence, we cannot hold that the plaintiff's pursuit of sanctions for the perceived discovery abuses was patently unreasonable. See Guaraldi v. Trans-Lease Group, 136 N.H. 457, 462, 617 A.2d 648, 651 (1992). The fact that those claims later were unsuccessful does not alone warrant an award of fees. See id. Their lack of merit was not established until defense counsel testified at the sanctions hearing as to the timing of their knowledge of the particular documents. To the extent, therefore, that the award in this case includes all fees incurred in preparation for and participation in the hearing, such an award is not supported by the evidence and is reversed. See Wright v. Jackson, 522 F.2d 955, 958 (4th Cir.1975).

The record indicates, however, that the sanctions hearing encompassed more than the initial allegations that four documents, and information relating to those documents, were knowingly withheld. At the outset of the sanctions hearing a motion was filed by the plaintiff's attorneys to increase sanctions to 3.3 million dollars, claiming that the City of Portsmouth and its attorneys had engaged in "many unlawful deeds ... over a long period of time" and alleging the need to appoint "a Special Prosecutor" and empanel "a Special Grand Jury" to examine the evidence. In addition, the plaintiff's attorneys made charges of perjury, criminal activity, and conspiracy to withhold information on the part of the defense attorneys, which they vowed to prove "beyond any doubt." The master found, however, that there was no evidence introduced in support of such serious allegations of wrongdoing, and our review of the record supports that finding. In fact, testimony established that Robertson had offered to settle his case for twice the jury verdict and that the offer was made under threat of criminal charges, bad publicity, and disbarment proceedings against opposing counsel.

In Keenan v. Fearon, 130 N.H. at 501, 543 A.2d at 1383, we recognized that "the 'unnecessary' character of the judicial proceeding [may] ... justify [a] fee award." The trial court has authority to award fees as "compensation for those who are forced to litigate against an opponent whose position is patently unreasonable." Id. at 502, 543 A.2d at 1383. The focus in such cases is on "a litigant's unjustifiable belligerence or obstinacy" where an action is "commenced, prolonged, required or defended without any reasonable basis in the facts provable by evidence." Id.; see Town of Nottingham v. Bonser, 131 N.H. 120, 133, 552 A.2d 58, 65 (1988) (persistent course of contumacious action warranted fee award), cert. denied, 490 U.S. 1109, 109 S.Ct. 3163, 104 L.Ed.2d 1026 (1989); Harkeem v. Adams, 117 N.H. 687, 691, 377 A.2d 617, 619 (1977).

One of the legacies of Anglo-Saxon jurisprudence and the common law is the adversarial process. Properly...