Foster v. Calderwood, 78-005

• Decision Date: 18 July 1978
• Docket Number: No. 78-005,78-005
• Citation: 389 A.2d 1388,118 N.H. 508
• Parties: Robert H. FOSTER et al. v. Walter A. CALDERWOOD et al.
• Court: New Hampshire Supreme Court

Page 1388

389 A.2d 1388

118 N.H. 508

Robert H. FOSTER et al. v. Walter A. CALDERWOOD et al.

No. 78-005.

Supreme Court of New Hampshire.

July 18, 1978.

Burns, Bryant, Hinchey, Cox & Shea, Dover (Donald R. Bryant, Dover, orally), for plaintiffs.

Sulloway, Hollis, Godfrey & Soden, Concord (Martin L. Gross, Concord, orally), for defendants.

Hartnett P.A., Dover (Charles F. Hartnett, Dover, orally), for Federal Mutual Insurance Co.

LAMPRON, Chief Justice.

This is an action for trespass to property. Defendants appeared by counsel retained by their insurance carrier, who filed a motion prior to trial to enforce a settlement. Plaintiffs also filed a motion asking the court to issue certain orders in determination of the case. After a hearing on these motions the court ordered the case settled by the payment of $5,000.00, with the plaintiffs having the right to enter the defendants' land in order to remove a pile of debris created by the trespass. Thereafter defendants retained personal counsel who filed a motion for rehearing, which was denied. Defendants again moved for a rehearing, which was also denied by the court after a hearing. Defendants' exceptions to these orders were reserved and transferred by Dunfey, J.

The issue to be decided is whether the Calderwoods were deprived of their rights without due notice and an opportunity to be heard.

On July 10, 1973, the plaintiffs brought an action against the defendants seeking $10,000 in damages for trespass to their property. The plaintiffs alleged that the Calderwoods had appropriated a large quantity of fill from their property, leaving the property extensively damaged. The Federal Mutual Insurance Company retained Attorney Hartnett to defend the case, pursuant to a homeowner's policy between the Calderwoods and the insurance company.

On May 5, 1976, a pretrial settlement conference was held. At the conference the plaintiffs proposed a settlement of $5,000.00 in damages and the granting of certain rights of entry onto the defendants' land in order to remove a pile of debris caused by the trespass. Attorney Hartnett submitted the plaintiffs' proposal to the Calderwoods, who rejected the demands for rights of entry.

On May 25, 1976, Attorney Hartnett filed a motion entitled "Defendants' Motion to Enforce Settlement" in which he stated that the Calderwoods had refused the condition requested by the plaintiffs and that the insurance carrier was willing to pay $5,000 in settlement. He requested that the court authorize the insurer to pay a $5,000 draft payable to the plaintiffs into court and that the insurer be discharged from any further liability. On May 26 the plaintiffs also filed a motion in which they asked the court to order that the sum of $5,000 be paid to them in determination of the case and that they have the right to enter the Calderwoods' land to remove a pile of debris created by the trespass. A hearing on these two motions was held on May 27, 1976, at which the Calderwoods were not personally present or represented by counsel other than that retained by their insurer. Thereafter the court issued an order granting the plaintiffs the sum of $5,000 and the right to enter the Calderwoods' land, and granting the insurance company the relief requested.

The Calderwoods thereafter retained personal counsel and moved for a rehearing. This motion was denied by the court after hearing. A second motion for rehearing was then made by the Calderwoods, which was also denied by the court after hearing.

The defendants' principal argument is that the court's order of May 27, 1976, granting the plaintiffs the right to enter their land, operated to deprive them of their property without due process of law because they were not afforded adequate notice of the hearing which resulted in this order or an opportunity to be heard. DiPietro v. Lavigne, 98 N.H. 294, 295, 99 A.2d 413, 414 (1953). Defendants contend that the presence of counsel retained by their insurance carrier at the May 27 hearing did not afford them representation at the hearing, nor did they knowingly waive the right to be personally represented at the hearing after adequate notice of the same.

Attorney Hartnett's presence at the May 27 hearing did not afford the defendants representation with respect to plaintiffs' claim for entry onto their land. Although Attorney Hartnett was counsel of record for the defendants, as counsel retained by the insurance company he took the position that the insurer's obligation to defend extended only to the plaintiffs' claim for money damages,...