Hilario v. Reardon
| Decision Date | 07 November 2008 |
| Docket Number | No. 2007–390.,2007–390. |
| Citation | 158 N.H. 56,960 A.2d 337 |
| Court | New Hampshire Supreme Court |
| Parties | Jose HILARIO v. Neil J. REARDON. |
Jose Hilario, by brief, pro se.
Flygare, Schwarz & Closson, PLLC, of Exeter (Daniel P. Schwarz on the brief and orally), for the plaintiff.
Nelson, Kinder, Mosseau & Saturley, PC, of Manchester (William C. Saturley and Christopher D. Hawkins on the brief, and Mr. Hawkins orally), for the defendant.
The plaintiff, Jose Hilario, appeals an order of the Superior Court (Lynn, C.J.) dismissing his legal malpractice action against the defendant, Attorney Neil J. Reardon. We reverse and remand.
The following facts appear in the record. In 2004, the plaintiff was indicted in both Rockingham and Hillsborough Counties on various charges. He pled guilty to all charges, and sentences on two charges were suspended. On the remaining charges, the plaintiff entered into a plea agreement with the State which provided that if he met certain conditions, including cooperating in other prosecutions, the State would petition for the suspension of a portion of his sentence. In September 2004, the plaintiff began serving a seven and a half year minimum sentence. Later that month, the defendant, who was representing the plaintiff, filed a motion to withdraw the plaintiff's plea regarding the Hillsborough County charges, in which it was stated that the plaintiff "is innocent of the Hillsborough charges and would now like to withdraw his plea of guilty to these charges and request a trial." The plaintiff avers that he did not authorize, and was not even aware of, the motion to withdraw. The Trial Court (Nadeau, J.) denied the motion.
In late March 2006, the plaintiff, acting pro se, filed a motion to suspend a portion of his sentence pursuant to the plea agreement. The State objected, arguing that by attempting to withdraw his plea, the plaintiff had breached the terms of the agreement. The plaintiff also filed a motion to obtain the transcripts of his sentencing hearing, which the State opposed. Ultimately, the Trial Court (Nadeau, J. & Coffey, J.) denied the plaintiff's motions; the motion to suspend was denied because the trial court agreed with the State that by attempting to withdraw his plea, the plaintiff had not complied with the terms of the plea agreement. The plaintiff did not appeal those rulings.
Subsequently, the plaintiff, again acting pro se, filed a civil complaint against the defendant alleging legal malpractice and negligence in filing the motion to withdraw his guilty plea, which led to the denial of his motion to suspend. In April 2007, the defendant, relying upon Mahoney v. Shaheen, Cappiello, Stein & Gordon, P.A., 143 N.H. 491, 727 A.2d 996 (1999), moved to dismiss the complaint. In May 2007, the trial court granted the motion to dismiss in an order stating only: "MOTION GRANTED, NO OBJECTION HAVING BEEN FILED." That same day the plaintiff objected to the motion to dismiss, arguing that Mahoney did not apply to his claims. He did not move to reconsider the trial court's order granting the motion to dismiss. The plaintiff now appeals, arguing that the trial court erred in granting the motion to dismiss and in not permitting him to obtain certain discovery.
We first address the defendant's contention that the plaintiff has not preserved any issues for our review. According to the defendant, because the plaintiff neither filed a timely objection, nor moved to reconsider the trial court's decision, none of the plaintiff's claims is properly before us.
As to the plaintiff's claim that the trial court erred in not permitting him certain discovery, we agree that the matter is not preserved. The plaintiff has not briefed the matter on appeal, and we, thus, consider the issue waived. See State v. Mountjoy, 142 N.H. 648, 652, 708 A.2d 682 (1998), cert. denied, 535 U.S. 969, 122 S.Ct. 1435, 152 L.Ed.2d 379 (2002). However, as to the plaintiff's argument that the trial court erred in granting the motion to dismiss because Mahoney does not bar his claim, a matter he has briefed on appeal, we conclude that the matter is properly before us. Here, the trial court's order on the defendant's motion to dismiss stated that the motion was granted because no objection was filed. Thus, the apparent basis of the trial court's ruling was not the merits of the parties' claims, but simply that the plaintiff had not timely objected. The plaintiff did not move to reconsider the trial court's ruling nor did he raise it in his notice of appeal. On appeal, however, he contends that the trial court's ruling violated Superior Court Rule 58 and relevant case law. We conclude that the trial court's ruling constitutes plain error. See Sup.Ct. R. 16–A.
The plain error rule allows us to exercise our discretion to correct errors not raised in the trial court or in the notice of appeal. See id.; State v. Emery, 152 N.H. 783, 786, 887 A.2d 123 (2005). The rule should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result. Emery, 152 N.H. at 786, 887 A.2d 123. For the rule to apply: (1) there must be error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings. State v. Panarello, 157 N.H. 204, 207, 949 A.2d 732 (2008).
Regarding the first two criteria, Superior Court Rule 58 states, in relevant part:
In civil or equity actions, unless a party requests oral argument or an evidentiary hearing on any motion filed by the party or on any objection thereto by another party within ten (10) days after the filing of the motion ... the court may act on the motion on the basis of the pleadings and record before it. Failure to object shall not, in and of itself, be grounds for granting the motion.
In ruling on a prior version of Rule 58, we stated that "[w] e construe the language of Rule 58 as requiring that a trial judge decide whether or not to grant the motion only after the judge has considered the law and the pleadings before the court." McGann v. Steenstra, 130 N.H. 411, 412, 543 A.2d 406 (1988), cert. denied, 498 U.S. 862, 111 S.Ct. 169, 112 L.Ed.2d 134 (1990). " Rule 58 does not provide that a motion to which no objection is filed within ten days may be ministerially granted." Id. Rule 58, in its current form, explicitly states that which we held in McGann: the lack of an objection is, in itself, an insufficient basis to grant a motion. Because the trial court granted the defendant's motion on the ground that an objection was not filed, and because such a ruling is barred both by McGann and Rule 58, we conclude that there was error and that the error was plain.
On the third criterion, to satisfy the burden of demonstrating that an error affected substantial rights, the plaintiff must demonstrate that the error was prejudicial, i.e., that it affected the outcome of the proceeding.
State v. Lopez, 156 N.H. 416, 425, 937 A.2d 905 (2007). Here, the trial court's ruling dismissed the plaintiff's cause of action with no regard for the merits of the parties' claims. Therefore, the error clearly affected the outcome of the proceedings. Finally, because the trial court's ruling dismissed the plaintiff's action on a basis expressly prohibited by the superior court rules, to allow the ruling to remain would seriously affect the fairness and integrity of judicial proceedings.
For these reasons we conclude that the trial court's order dismissing the plaintiff's case for failure to file an objection was plain error and therefore cannot stand. However, rather than remand the matter for a new ruling, because the issue presented is a question of law, we choose, in the interest of judicial economy, to address the merits of the plaintiff's claim. See State v. Vassar, 154 N.H. 370, 375, 910 A.2d 1193 (2006).
In reviewing the trial court's grant of a motion to dismiss, our task is to ascertain whether the allegations pled in the plaintiff's writ are reasonably susceptible of a construction that would permit recovery. Berry v. Watchtower Bible & Tract Soc., 152 N.H. 407, 410, 879 A.2d 1124 (2005). We assume all facts pled in the plaintiff's writ are true, and we construe all reasonable inferences drawn from those facts in the plaintiff's favor. Id. We then engage in a threshold inquiry that tests the facts in the complaint against the applicable law. Id.
The plaintiff argues that Mahoney should either be overruled, or that it does not bar claims such as his. In Mahoney, during an investigation into potential Medicaid fraud, the State, through a grand jury, served a subpoena duces tecum on Mahoney requesting the disclosure of various records and documents. Mahoney, 143 N.H. at 493, 727 A.2d 996. Although Mahoney disclosed some documents, he refused to comply fully with the subpoena. Id. After he failed to comply with additional subpoenas served on him, as well as an order of the trial court compelling production of the records, the State petitioned for Mahoney to be held in civil contempt. Id. Mahoney then hired the defendant attorney and her law firm to represent him for purposes of the grand jury investigation. Id.
Upon beginning their representation of Mahoney, the defendants began executing a strategy of forestalling the State from obtaining the records sought. Id. After various hearings relating to the subpoenas and Mahoney's lack of compliance, Mahoney was held in civil contempt and fined. Id. at 494, 727 A.2d 996. Eventually, he pled guilty to various charges relating to Medicaid fraud. Id. Following his plea, "Mahoney sued the defendants for malpractice associated with their advice and activities regarding the Medicaid fraud investigation." Id. He sought to recover the contempt fines and attorney's fees, in part, because of the defendants' allegedly flawed representation in resisting the subpoenas issued in conjunction with...
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