Lumber v. Smyjunas

• Decision Date: 14 April 2011
• Docket Number: 2010–356.,Nos. 2010–259,s. 2010–259
• Citation: 161 N.H. 714,20 A.3d 947
• Parties: J & M LUMBER AND CONSTRUCTION COMPANY, INC.v.J. Robert SMYJUNAS, Jr. and another.
• Court: New Hampshire Supreme Court

161 N.H. 714
20 A.3d 947

J & M LUMBER AND CONSTRUCTION COMPANY, INC.
v.
J. Robert SMYJUNAS, Jr. and another.

Nos. 2010–259

2010–356.

Supreme Court of New Hampshire.

Argued: Feb. 16, 2011.Opinion Issued: April 14, 2011.

[20 A.3d 951]

The Crisp Law Firm, PLLC, of Concord (Jack P. Crisp, Jr. on the brief and orally), and Wiggin & Nourie, P.A., of Manchester (Andrea Q. Labonte on the brief), for the plaintiff.Cleveland, Waters and Bass, P.A., of Concord (William B. Pribis on the brief and orally), for the defendant.DALIANIS, C.J.

[161 N.H. 716] In these consolidated cases, the defendant, J. Robert Smyjunas, Jr., appeals the jury verdict against him in favor of the plaintiff, J & M Lumber and Construction Company, Inc. (J & M), and J & M appeals the decision of the Superior Court ( Vaughan, J.) to award prejudgment interest from the date of J & M's 2008 writ of summons. We affirm.

[20 A.3d 952]

I. Background

The record reveals the following facts. In 2000, J & M brought an equity action against Gorham Supermarket, LLC (Gorham Supermarket), among others, to enforce J & M's easement rights associated with land in Gorham. In a 2003 order, the superior court, in addition to other rulings, ordered Gorham Supermarket to pay J & M's attorney's fees and costs. Gorham Supermarket appealed, and in a 2004 order, we upheld the trial court's decision. See J and M Lumber and Construction Company, Inc. v. Gorham Supermarket LLC & a., No.2003–0644 (N.H. Aug. 4, 2004). In 2005, the trial court calculated the total amount of attorney's fees and costs owed J & M to be $110,007.01.

In 2008, J & M brought the instant action against Smyjunas, Gorham Supermarket, Bitsy Realty, Inc. (Bitsy Realty) and Tolle Road Partners, [161 N.H. 717] Inc. (Tolle Road), seeking to collect the 2005 attorney's fees and costs award. J & M's writ alleged that Gorham Supermarket had not paid any of J & M's attorney's fees and costs, despite the court order to do so, and that, in fact, Gorham Supermarket had been improperly dissolved and its assets depleted to avoid liability. The writ alleged that Bitsy Realty and Tolle Road were the sole members of Gorham Supermarket, which is a limited liability company, and that Smyjunas was the sole owner of both Bitsy Realty and Tolle Road. It also alleged that Smyjunas, Bitsy Realty and/or Tolle Road improperly liquidated and received Gorham Supermarket's assets, leaving Gorham Supermarket without sufficient assets to pay its debt to J & M.

The case was tried to a jury. Before the trial concluded, J & M voluntarily dismissed with prejudice its claims against Gorham Supermarket, Bitsy Realty and Tolle Road. As a result, Smyjunas became the only defendant.

J & M's claims against Smyjunas were: (1) piercing the corporate veil; (2) improper wind up of a limited liability company; (3) unjust enrichment; and (4) breach of the implied duty of good faith and fair dealing. The jury issued a general verdict in J & M's favor, awarding J & M $110,007.01. Thereafter, J & M filed a motion for prejudgment interest dating either from its 2000 equity action or the trial court's 2005 orders requiring Gorham Supermarket to pay J & M $110,007.01 in attorney's fees and costs. The trial court awarded J & M prejudgment interest running only from the date of its 2008 writ. These appeals followed.

II. Smyjunas's AppealA. Timeliness of Claims

Smyjunas first argues that the trial court erred by failing to dismiss J & M's claims for improper dissolution and unjust enrichment because, he argues, both claims are time-barred. Under RSA 508:4, I (2010):

[A]ll personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of, except that when the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.

Smyjunas contends that J & M's improper dissolution claim is untimely because when J & M deposed him in January 2002, it knew or should have [161 N.H. 718] known that he had improperly dissolved Gorham Supermarket. He argues that J & M's unjust

[20 A.3d 953]

enrichment claim similarly is untimely because, as of his January 2002 deposition, J & M knew or should have known that he had allegedly received Gorham Supermarket's assets unjustly. Thus, he reasons, J & M should have filed its suit within three years of January 2002 to be timely.

These arguments presume that J & M would have had standing to assert its improper dissolution and unjust enrichment claims in January 2002, three years before the trial court had even calculated the amount of attorney's fees and costs that Gorham Supermarket owed J & M. For a party to have standing, the party must have suffered a legal injury. Libertarian Party of N.H. v. Sec'y of State, 158 N.H. 194, 195, 965 A.2d 1078 (2008). J & M did not suffer an injury from the allegedly improper dissolution of Gorham Supermarket or Smyjunas's alleged unjust enrichment in 2002.

Smyjunas's reliance upon the “discovery rule” to support his arguments is to no avail. The discovery rule allows a plaintiff to commence an action within three years “of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.” RSA 508:4, I. The rule has two prongs that must be satisfied: “First, a plaintiff must know or reasonably should have known that it has been injured; and second, a plaintiff must know or reasonably should have known that its injury was proximately caused by conduct of the defendant.” Beane v. Dana S. Beane & Co., 160 N.H. 708, 713, 7 A.3d 1284 (2010) (quotation omitted). Here, there was no injury for J & M to discover in 2002.

Smyjunas next asserts that J & M's unjust enrichment claim is barred by laches because J & M “sat on its rights for more than six years” after his 2002 deposition “before filing suit” on this claim. He has failed to provide a record, however, demonstrating that he preserved this claim for our review by arguing laches in the trial court. Accordingly, we decline to address it. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250, 855 A.2d 564 (2004).

B. Collateral Estoppel

Smyjunas next argues that the trial court erred when it granted J & M's motion in limine to preclude him from relitigating whether he had notice of J & M's claim regarding its easement when Gorham Supermarket owned the subject property (1997–1998) and before Gorham Supermarket was dissolved in 2001. The trial court ruled that Smyjunas was collaterally estopped from relitigating this fact because it had been fully litigated and decided in J & M's original suit against Gorham Supermarket. Smyjunas also argues that the trial court erred when it instructed the jury that, “The [161 N.H. 719] Court has already found and ruled that [Smyjunas] had notice of [J & M's] easement over the property that was developed.”

We assume, without deciding, that the trial court erred when it granted J & M's motion in limine and gave the contested jury instruction. We apply a two-step analysis to determine whether to reverse a jury verdict in a civil case based upon an erroneous jury instruction. Rallis v. Demoulas Super Markets, 159 N.H. 95, 98, 977 A.2d 527 (2009). First, the appealing party must show that it was a substantial error such that it could have misled the jury regarding the applicable law. Id. at 98–99, 977 A.2d 527. Second, if we conclude that the error was a substantial one, we will reverse the jury verdict unless the opposing party shows that the error did not affect the outcome at

[20 A.3d 954]

trial; in other words, the error was harmless. Id. at 99, 977 A.2d 527. Here, we do not reverse because we conclude that the alleged error was harmless.

Notwithstanding the trial court's collateral estoppel ruling, Smyjunas did not dispute that he knew of J & M's easement before construction began. He testified:

Q. Now, you will notice in the deed to you—

A. Uh-huh.

Q.—by which you bought the property, there is reference to the right of way, isn't there?

A. Oh, yes. Yes, there is.

Q. And all of your engineering diagrams showed that right of way, did they not?

A. Oh, yes.

....

Q. And during the course of that investigation [of the status of the property], you must have learned about this J & M Lumber easement?

A. We—yes, we learned about that. We had—we learned about it in the title review. We learned about it in the deeds that we looked at in the very beginning. We looked—so it was—it was—it was fairly well known.

Additionally, J & M's owner, Marcel Nadeau, testified that he called Smyjunas “twice to make him aware that [Nadeau] had a right of way going through that land.” He testified:

[161 N.H. 720] Q. You said that in 1997 you called Mr. Smyjunas twice—

A. Yes.

Q.—to tell him about the easement.

A. Yes, I did.

Q. And did you actually speak with him?

A. I talked to him personally.

Q. And what did you tell him?

A. I told him that I had a right of way, you know, going through that land that he had—that he had purchased ...; that I wanted to protect my right of way because I was going to make use of it.

Q. And when was the next time you spoke with Mr. Smyjunas?

A. I spoke to him after he had started his site work.

....

Q. And what did you tell him then?

A. I told him that they started the thing, and I said, “Don't forget, it's a deeded right of way, it's a right of way of record,” and I says [ sic ], “I want to preserve it.”

On this record, we conclude that a reasonable juror could not have found anything other than that Smyjunas had notice of J & M's easement over the property. Accordingly, we hold that the trial court's instruction to that effect did...