Proctor v. Bank of New Hampshire, N.A.

• Decision Date: 15 June 1983
• Docket Number: No. 81-391,81-391
• Citation: 123 N.H. 395,464 A.2d 263
• Parties: Barrett H. PROCTOR v. BANK OF NEW HAMPSHIRE, N.A.
• Court: New Hampshire Supreme Court

Page 263

464 A.2d 263

123 N.H. 395

Barrett H. PROCTOR v. BANK OF NEW HAMPSHIRE, N.A.

No. 81-391.

Supreme Court of New Hampshire.

June 15, 1983.

R.J. Shortlidge, Jr., Keene, by brief and orally, for plaintiff.

Orr & Reno P.A., Concord (Richard B. Couser, Concord, on brief and orally), for defendant.

KING, Chief Justice.

The plaintiff, Barrett H. Proctor, appeals the granting of a motion to dismiss as to seven counts of his eighteen-count writ, and the granting of a motion for summary judgment as to the remaining eleven counts. We affirm in part, reverse in part, and remand.

The parties' dispute arose when the defendant, Bank of New Hampshire, N.A., foreclosed on a mortgage which it held on an inn owned by the plaintiff. Over a number of years, the plaintiff had borrowed a total of $120,000 from the bank secured by a mortgage for the same amount. In June 1977, when the plaintiff was more than nine months in arrears on repayment of the loan, the bank foreclosed, demanding immediate repayment of the outstanding balance of the loan, which was approximately $114,000. Because the plaintiff was unable to make this payment, the bank held a foreclosure sale and sold the property for $150,000.

The plaintiff filed a writ in superior court containing eighteen counts, alleging breach of contract, fraud and deceit, negligence and wrongful foreclosure. He sought $750,000 in damages. The defendant filed a motion to dismiss, which was referred to a Master (Theodore Wadleigh, Esq.), who recommended that seven of the eighteen counts of the writ be dismissed. This recommendation was accepted and approved by the Superior Court (Pappagianis, J.).

The superior court then appointed an Auditor (Chester C. Eaton, Esq.) to rule on other pending motions, to hear evidence, and to determine which issues of fact should be decided by a jury. The defendant filed several motions for summary judgment on the remaining eleven counts of the plaintiff's writ. The auditor recommended that these motions be granted, and the Superior Court (DiClerico, J.) approved the auditor's recommendation. The plaintiff now appeals the granting of both the defendant's motion to dismiss and the motions for summary judgment.

The plaintiff argues that the superior court erred in dismissing seven counts of his writ because the counts stated claims upon which relief could be granted. In determining whether a motion to dismiss should be granted, all facts properly pleaded are assumed to be true, and the reasonable inferences therefrom are construed most favorably to the plaintiff. Jarvis v. Prudential Ins. Co., 122 N.H. 648, 651, 448 A.2d 407, 409 (1982). If the plaintiff could recover upon any set of facts under the pleadings, the motion to dismiss as to that count should be denied. Id., 448 A.2d at 409.

We first consider count I of the plaintiff's writ. In count I, the plaintiff alleged that the defendant agreed to perform certain services for him, including the filing and recording of partnership papers for the creation of a limited partnership, and the filing and recording of documents required for the transfer of the inn to the limited partnership, of which the plaintiff was a general partner. The plaintiff alleged that the defendant breached this contract and that, as a result, the plaintiff was unable to secure the protection of federal bankruptcy laws and lost his equity interest in the inn. The defendant contends that this count is insufficient because it fails to allege how the plaintiffs was damaged and how the damages were related to the defendant's acts. We believe that, assuming all facts alleged in the count to be true, the count sufficiently alleges the plaintiff's damages and their relation to the defendant's actions.

Although we agree that count I states a claim upon which relief could be granted, we find no merit to the plaintiff's argument that the court erred in dismissing the remaining counts. Counts VII, X, XII and XVIII of the plaintiff's writ all sound in fraud and deceit. To establish fraud, the plaintiff must prove that the defendant made a fraudulent representation for the purpose or with the intention of causing the plaintiff to act upon it. Hall v. Insurance Co., 91 N.H. 6, 10, 13 A.2d 157, 160 (1940). While the plaintiff need not establish fraud in his pleadings, in order to withstand a motion to dismiss the plaintiff must specify the essential details of the fraud, and specifically allege the facts of the defendant's fraudulent actions. Jarvis v. Prudential Ins. Co., 122 N.H. at 653, 448 A.2d at 410. It is not sufficient for the plaintiff merely to allege fraud in general terms. Belisle v. Belisle, 88 N.H. 459, 461, 191 A. 273, 274 (1937).

In count VII, the plaintiff alleged that the defendant induced the plaintiff to refinance the mortgage on the inn. The count does not specifically allege what fraudulent representation the defendant made or that the representation was made for the purpose of causing the plaintiff to act upon it. The plaintiff alleged in count X that the defendant misled the plaintiff into believing that a limited partnership, of which the plaintiff was a general partner, owned the inn. Like count VII, count X fails to allege the fraudulent representation made by the defendant or that the representation was made for the purpose of causing the plaintiff to act upon it.

In count XIII, the plaintiff alleged that the defendant approved the plaintiff's use of overdrafts and the withdrawal of money from a special account, but later withdrew the privilege of using overdrafts retroactively and refused to permit the withdrawal of some of the money in the account. This count also fails to allege specifically a fraudulent misrepresentation made by the defendant for the purpose of causing the plaintiff to act upon it. Finally, in count XVIII, the plaintiff alleged that the defendant secured an ex parte order which deprived the plaintiff of possession of the inn on the basis of false and misleading statements. Like the other counts alleging fraud, count XVIII fails to allege any specific fraudulent representation or that the representation was made for the purpose of causing the plaintiff to act upon it. Thus, we hold that the court properly dismissed these counts.

Count XIV of the plaintiff's writ alleged a lack of good faith and due diligence on the part of the defendant because the defendant failed to postpone foreclosure in order to permit the plaintiff to refinance with another financial institution. The plaintiff's writ does not indicate how this duty arises. While we indicated in Silver v. First National Bank, 108 N.H. 390, 391-92, 236 A.2d 493, 495 (1967), that a mortgagee may have a duty to postpone a foreclosure sale "in the exercise of good faith and due diligence to protect the mortgagor's interest," we did not state that a mortgagee had a duty to postpone foreclosure itself to permit the plaintiff to obtain refinancing. Nor does such a duty arise from a fiduciary duty owed by the defendant as mortgagee, to the plaintiff mortgagor. While we indicated in Silver that a mortgagee had a duty to protect the mortgagor's interest, we stated that the mortgagee had no fiduciary duty. Id. at 391, 236 A.2d at 494-95. Because count XIV does not indicate the theory on which the plaintiff was proceeding, it was properly dismissed. Berlinguette v. Stanton, 120 N.H. 760, 762, 423 A.2d 289, 291 (1980).

Count XV sounds in negligence. It alleged that a local branch manager of the defendant advised the plaintiff that he could use overdrafts as a line of credit and withdraw funds from a special account. The basis of the parties' dispute is incomprehensible in this instance because this count fails to adequately allege the defendant's duty, breach, and the resulting harm to the plaintiff. Id. at 763, 423 A.2d at 291. It was properly dismissed.

The plaintiff claims that the court's dismissal of these seven counts was erroneous for another reason. He contends that the court could not grant the motion to dismiss as to seven of the counts, while denying it as to the remaining counts. He claims that if any count withstood a motion to dismiss, none of the counts should have been dismissed, citing Blake v. State, 115 N.H. 431, 343 A.2d 223 (1975). In Blake, the plaintiff's writ alleged that he had been illegally discharged from his employment with the State. His writ contained three counts. When the State filed a motion to dismiss the writ, the superior court transferred to this court without ruling the question whether any of the three counts stated a cause of action. We examined the first count and determined that it stated a cause of action, and held therefore that the writ should not be dismissed. Id. at 435, 343 A.2d at 226. We did not indicate that it would have been erroneous to dismiss one or both of the other two counts if they failed to state a cause of action. That question was not before us. Moreover, since Blake, we have approved the dismissal by a trial court of one or more counts of a multiple-count writ and the retention of other counts. See, e.g., Young v. Abalene Pest Control Serv's, Inc., 122 N.H. 287, 289-90, 444 A.2d 514,...