Moore v. Grau

• Decision Date: 08 August 2018
• Docket Number: No. 2017-0035,2017-0035
• Citation: 171 N.H. 190,193 A.3d 272
• Parties: Cheryl C. MOORE, M.D. v. Charles W. GRAU, Esquire & a.
• Court: New Hampshire Supreme Court

171 N.H. 190

193 A.3d 272

Cheryl C. MOORE, M.D.

v.Charles W. GRAU, Esquire & a.

No. 2017-0035

Supreme Court of New Hampshire.

Argued: January 18, 2018

Opinion Issued: August 8, 2018

Devine, Millimet & Branch, P.A., of Manchester (Daniel E. Will and Joshua M. Wyatt on the brief, and Mr. Will orally), and Associated Attorneys of New England, of Manchester (John F. Skinner, III on the brief), for the plaintiff.

Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Andru H. Volinsky and Christina A. Ferrari on the brief, and Mr. Volinsky orally), for the defendants.

Shaheen & Gordon, P.A., of Concord (William E. Christie on the memorandum of law), for the intervenor.

HICKS, J.

The plaintiff, Cheryl C. Moore, M.D., appeals an order of the Superior Court (McNamara, J.) granting summary judgment to the defendants, Charles W. Grau, Esquire and Upton Hatfield, LLP, on the plaintiff's claims for legal malpractice, violation of the New Hampshire Consumer Protection Act, RSA ch. 358-A (2009 & Supp. 2017), and entitlement to an accounting and forfeiture of fees. We reverse and remand.

The following facts are taken from the trial court's orders in this case and from undisputed documentary evidence contained in the record. The plaintiff, a pathologist, was a member of Young & Novis, P.A. (Y & N), along with her partner, Dr. Glenn Littell. Y & N provided pathology services to the intervenor, Wentworth-Douglass Hospital (WDH), until WDH elected to terminate Y & N's services, effective February 28, 2010. Prior to that date, an attorney acting on Y & N's behalf — Gregory Wirth — solicited trial counsel for a potential wrongful termination suit against WDH. Grau, an attorney at Upton Hatfield, responded, and, on October 23, 2009, the plaintiff retained Grau and his firm.

Wirth continued to represent the plaintiff and Littell with respect to their exit from WDH. In that capacity, Wirth emailed Grau to inquire what documents or information he might need for the anticipated lawsuit. Grau responded with a list of documents and records he wanted the plaintiff and Littell to "take." Wirth forwarded Grau's response to the plaintiff and Littell on February 10, 2010.

On February 28, the termination date for Y & N's services, the plaintiff allegedly permitted her husband, Dr. Thomas Moore, to access Y & N computers connected to WDH's network. The plaintiff's husband and Littell then downloaded confidential documents and destroyed certain electronic data.

WDH sued the plaintiff, her husband, and Littell (the CFAA defendants) in federal court (the CFAA litigation), claiming violations of the Computer Fraud and Abuse Act (the CFAA). See 18 U.S.C. § 1030 (2012). The CFAA defendants responded with a number of counterclaims against WDH.

In August 2012, the parties reached a tentative settlement. During negotiations preceding the tentative settlement, the CFAA defendants were jointly represented by Grau and Upton Hatfield, along with Wirth. In mid-August, however, the plaintiff hired a separate attorney, Peter Callaghan, to represent her in finalizing the settlement.

On September 20, 2012, the plaintiff executed a settlement agreement (the Settlement Agreement) to which WDH, Y & N, Littell, and the plaintiff's husband were also parties. The Settlement Agreement resolved all claims and counterclaims in the pending litigation and contained the following provision regarding future suits (Paragraph 4):

All Parties represent that no future lawsuits will be filed against any third parties arising from the former relationship between WDH and the [CFAA defendants]. All Parties represent that they have fully disclosed to the other Parties any disclosures or complaints filed with any state, local or federal law enforcement or administrative agency, any accrediting organization, Board, professional organization or other entity of any kind that regulates, oversees, credentials, accredits or has enforcement authority over any party (collectively, "Agencies") and hereby represent that they have no basis to make any further such disclosures or complaints and shall not make such disclosures or complaints to any Agencies.

In Paragraph 3 of the Settlement Agreement, however, WDH specifically acknowledged that the agreement did not prohibit the CFAA defendants from continuing to pursue a pending lawsuit against their insurance company.

In March 2013, the plaintiff commenced the instant lawsuit against the defendants, alleging legal malpractice, violation of the Consumer Protection Act, and entitlement to an accounting and forfeiture of fees. WDH intervened in the action. The defendants moved for summary judgment on several grounds, including that the Settlement Agreement barred the suit. The trial court granted summary judgment on that basis, concluding that the plaintiff's claims against the defendants in the instant action "originate or grow out of or flow from her relationship with WDH," and, therefore, fall within the prohibition of Paragraph 4 of the Settlement Agreement. Having determined that the Settlement Agreement barred the suit, the court found it unnecessary to address the defendants' remaining arguments or to decide a pending motion to quash. The plaintiff unsuccessfully moved for reconsideration, and this appeal followed.

On appeal, the plaintiff argues, among other things, that the trial court erred in granting summary judgment to the defendants because the plaintiff's legal malpractice claims do not "arise from" her relationship with WDH and, therefore, do not fall within the terms of Paragraph 4. Our standard of review is well-settled:

In reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment. We review the trial court's application of the law to the facts de novo.

Pike v. Deutsche Bank Nat'l Trust Co., 168 N.H. 40, 42, 121 A.3d 279 (2015) (citations omitted).

"Generally, parties are free to settle a case on any terms they desire and that are allowed by law." Poland v. Twomey, 156 N.H. 412, 414-15, 937 A.2d 934 (2007). "Settlement agreements are contractual in nature and, therefore, are generally governed by principles of contract law." Id. at 414, 937 A.2d 934. "Interpretation of a contract, including whether a contract term or clause is ambiguous, is ultimately a question of law for this court to decide." Merrimack School Dist. v. Nat'l School Bus Serv., 140 N.H. 9, 11, 661 A.2d 1197 (1995) (quotation and brackets omitted). "In interpreting a contract, we consider the contract as a whole," id., and "we give words their ordinary meaning unless it appears from the context that the parties intended a different meaning," id. at 13, 661 A.2d 1197. "When parties use expansive, unrestricted language, we will give those phrases their normal, broad reading." Id.

"Generally speaking and subject to exception, a party is not released unless named in the release." Balamotis v. Hyland, 159 N.H. 803, 808, 992 A.2d 548 (2010) (quotation and brackets omitted). Even "a release ... [that] purports to comprehend all claims arising from a particular incident, including claims against unspecified strangers, is not dispositive of the question whether the release bars later suit against a party not named in the release." Gagnon v. Lakes Region Gen'l Hosp., 123 N.H. 760, 764-65, 465 A.2d 1221 (1983). Because the assertion that the Settlement Agreement bars this suit against the defendants is an affirmative defense, the defendants bear the burden "to show that the release was intended to discharge them or that the plaintiff has received full compensation." Id. at 765, 465 A.2d 1221.

We note that Paragraph 4 reads as a covenant not to sue, rather than a release. See Stateline Steel Erectors v. Shields, 150 N.H. 332, 338, 837 A.2d 285 (2003) (discussing distinction between covenant not to sue and release). Nevertheless, we see no impediment to applying the foregoing cases to the provision at issue here, whether construed as a release, a covenant not to sue, or, as the defendants call it, a "waiver of claims." Indeed, while in the past, a release of one joint tortfeasor generally barred suit against the others, though presumably not named in the release, see Wheat v. Carter, 79 N.H. 150, 150, 106 A. 602 (1919) ; but cf. RSA 507:7-h (2010) (altering common law rule), such was never the case with covenants not to sue, see Colby v. Walker, 86 N.H. 568, 570, 171 A. 774 (1934), nor true as a matter of law as to successive tortfeasors, see Wheat, 79 N.H. at 152, 106 A. 602.

Paragraph 4 does not specifically name Grau or Upton Hatfield, but broadly purports to cover "future lawsuits ... against any third parties arising from the former relationship between WDH and the [CFAA defendants]." In arguing that Paragraph 4 does not cover the instant action, the plaintiff first looks to the phrase "arising from." She asserts that "[w]hile it could be argued that [her] claims might have a remote ‘relation to’ the former pathology contract between WDH and Y & N, it cannot plausibly be argued that this action ‘arises from’ that former contractual relationship."

Although we have not construed the language "arising from" as used in a contract, cf. Merrimack School Dist., 140 N.H. at 13, 661 A.2d 1197 (construing "arise from or out of"), we have construed the phrase "arising out of." See, e.g., Cannon v. Maine Bonding & Cas. Co., 138 N.H. 365, 366, 639 A.2d 270 (1994). As the trial court noted, and the defendants reiterate, our cases recognize that "[t]he phrase ‘arising out of’ has been interpreted as a very broad, general and comprehensive term, which we have defined as meaning ‘originating from or growing out of or flowing from.’ " Merrimack School Dist., 140 N.H. at 13, 661...