Lillie-Putz Trust v. Downeast Energy Corp.
| Decision Date | 22 September 2010 |
| Docket Number | No. 2009–821.,2009–821. |
| Citation | 8 A.3d 65,160 N.H. 716 |
| Court | New Hampshire Supreme Court |
| Parties | LILLIE–PUTZ TRUST, Peter E. Simmons, Trustee v. DOWNEAST ENERGY CORPORATION and another. |
Charles G. Douglas, III, of Concord, and John Anthony Simmons, Sr., of Hampton, on the brief, and Mr. Douglas orally, for the petitioner.
Nicholas R. Aeschliman, of Portsmouth, by brief and orally, for respondent DownEast Energy Corporation.
Brown, Olson & Gould, P.C., of Concord (Bryan K. Gould and Philip R. Braley on the brief, and Mr. Gould orally), for respondent Alliance Energy, LLC.
The petitioner, Lillie–Putz Trust (Trust), appeals two orders of the Superior Court (McHugh, J.) dismissing its writ with prejudice as a sanction for the Trust's refusal to appear for a scheduled mediation and denying its motion for reconsideration. We affirm.
The trial court found or the record supports the following facts. In 1994, the then-owners of a gasoline station in North Hampton leased it to respondent DownEast Energy Corporation (DownEast). In 1999, the Trust acquired the property subject to DownEast's long-term lease. Attorney Simmons, who was counsel for the Trust in the trial court, and his father and brother are the sole beneficiaries of the Trust. In 2001, DownEast assigned its lease to respondent Alliance Energy, LLC (Alliance), which continues to operate the gasoline station.
Shortly after the beginning of its lease, DownEast replaced the existing gasoline tanks. The old tanks were leaking, and had contaminated the surrounding soil and groundwater. DownEast paid for the clean-up and brought suit for reimbursement from the then-owners. After the Trust purchased the property, it intervened to defend against the claims.
In January 2006, the parties participated in mediation, resulting in the Trust's agreement to pay DownEast $70,000. The Trust tendered a check in the amount of $70,000, but wrote on the check "Seventy and no thousand dollars." Concerned that this language would affect the check's negotiability, DownEast returned it to the Trust, and requested a replacement check. In May 2006, counsel for the Trust notified DownEast that it was disavowing the settlement because DownEast had allegedly "concealed" contamination of the property in 2001.
DownEast moved to enforce the settlement, seeking $70,000 plus interest and attorney's fees. The Superior Court (Fitzgerald, J.) granted DownEast's motion. The Trust, however, continued to refuse to comply with the settlement agreement. DownEast moved for contempt and costs. The trial court held a hearing on DownEast's motion, at which neither the trustee nor counsel for the Trust appeared. The court found the Trust in contempt, and ordered it to pay the settlement and DownEast's attorney's fees and interest, and ordered the arrest and incarceration of the trustee if the Trust did not pay. The Trust then honored the settlement agreement.
Also in May 2006, the Trust filed the present lawsuit against DownEast, alleging that DownEast had discharged gasoline on the property in 2001. In March 2008, the Trust moved to amend the writ to add Alliance as a defendant, alleging that there was another discharge of gasoline on the property in 2005.
In August 2008, the trial court held a structuring conference. Prior to the conference, counsel for Alliance filed a partial stipulation regarding alternative dispute resolution. While counsel for DownEast and Alliance had conferred and reached an agreement about a proposed mediation schedule, they were unable to reach counsel for the Trust, despite several attempts. In the stipulation, DownEast and Alliance proposed alternative dispute resolution before an experienced mediator during the week of January 26, 2009.
At the structuring conference, the trial court set a deadline of April 30, 2009, for the parties to complete discovery, and scheduled jury selection to begin on June 22, 2009. The parties indicated that they would arrange for private mediation. The Trust thereafter agreed to use the mediator that DownEast and Alliance suggested, and mediation was scheduled for December 17, 2008.
On October 28, 2008, counsel for the Trust emailed counsel for DownEast and Alliance, indicating that he was not prepared to engage in the mediation because discovery was incomplete. He proposed that the mediation be rescheduled sometime after the trial court's deadline for the completion of discovery. DownEast and Alliance proposed continuing the mediation until March 2009, and informed the Trust that if an agreement could not be reached on a date in March, Alliance would ask the court to set a date. The Trust then agreed to mediate in March, and the mediator confirmed mediation would occur on March 11, 2009. The mediator asked the parties to file mediation summaries between five and seven days before the mediation. DownEast and Alliance each prepared and filed mediation statements and provided copies to the Trust. The Trust did not file a mediation statement.
Also on October 28, 2008, counsel for the Trust sent an eviction notice to the sheriff's office seeking to evict Alliance from the property. The grounds for eviction were the same as those contained in the Trust's pending suit against DownEast and Alliance. In November 2008, Alliance commenced an equity action against the Trust challenging the eviction. In January 2009, the Superior Court (Nadeau, J.) enjoined the Trust from attempting to evict Alliance and consolidated Alliance's equity action with the Trust's civil action.
At approximately 4:00 p.m. on March 6, 2009, five days before the scheduled mediation, counsel for the Trust contacted counsel for DownEast and Alliance by email, notifying them that he was not prepared to participate in the mediation session:
Counsel for Alliance immediately replied that the Trust's position was "unacceptable" and that they had already continued the mediation once at the Trust's request. He pointed out that "[i]t is rare that all discovery is completed by the time of mediation," that Alliance had "invested a significant amount of time in getting prepared for the mediation and arranging for client representatives to be present," and that Alliance planned to attend as scheduled. Counsel for the Trust responded that the Trust "ha[s] not deposed even one ... witness[ ]" and added that his father was unable to attend because of medical reasons. He concluded by stating,
Counsel for Alliance responded that the Trust had "known about this mediation for months ... [and] had ample opportunity to take the depositions ... before now," and that Trust counsel's father's unavailability was irrelevant because his brother, not his father, was the trustee. He then asked Trust's counsel to reconsider and informed him that if the Trust refused to appear and negotiate in good faith, Alliance would be forced "to pursue the remedies provided by the superior court rules." He closed by writing, "Either way, please let me hear from you by 9:00 Monday morning." At about 4:00 p.m. on Monday, March 9, counsel for the Trust replied, "The Trust's position is unchanged with regard to the Mediation."
Counsel for the Trust then called the mediator's office and left a voicemail "alert[ing] him that the mediation could not go forward as the Trust had not taken the required depositions," and sent the mediator's paralegal an email to the same effect. In it, he stated that he had asked counsel for DownEast and Alliance to notify the mediator, and that he was "concerned that they ha[d] not." He further stated, "As a courtesy to [the mediator], I want to be sure that he understands that we are unable to participate" at the mediation session. No mediation occurred on March 11, 2009.
The Trust claimed that it could not depose John Peters, Steven Hall, and Frederick Hostrop before the mediation. In January 2007, DownEast provided the Trust with interrogatories identifying Peters and Hall as witnesses, and in April 2008 disclosed Hostrop as one of its experts. The Trust did not, however, attempt to depose of any of these witnesses between April 2008 and January 2009.
In October 2008, DownEast's counsel offered to make Hall available for deposition on November 21, 2008, and in November, he offered to make Hostrop available for deposition on December 5 or 9, 2008. The Trust did not respond to these offers, and on November 14, DownEast's counsel asked counsel for the Trust if he wanted to depose Hall on November 21. Trust's counsel replied that November 21 "does not work" and that he would be in touch to suggest other dates.
Trust's counsel then emailed counsel for DownEast on December 22, 2008, seeking to depose Hall and Peters "after mid-January" 2009, when he returned from vacation. DownEast's counsel informed him that he would be away, and sought to schedule the depositions after February 9. Trust's counsel did not respond, and on January 14, 2009, DownEast's counsel reminded him that he would be away from January 16 through February 9, and again offered to schedule the depositions to occur after he returned. He asked Trust's counsel to contact him before he left for vacation, or to speak with his secretary in his absence to make arrangements. Trust's counsel did not respond to this email to schedule depositions of Hall or Peters for nearly two weeks.
On January 19, 2009, Trust's counsel emailed Alliance's co...
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