Singer Asset Fin. Co. v. Wyner

• Decision Date: 04 December 2007
• Docket Number: No. 2006–720.,2006–720.
• Court: New Hampshire Supreme Court
• Parties: SINGER ASSET FINANCE COMPANY, LLC v. Debora WYNER.

156 N.H. 468

937 A.2d 303

SINGER ASSET FINANCE COMPANY, LLC

v.Debora WYNER.

No. 2006–720.

Supreme Court of New Hampshire.

Argued: June 20, 2007.

Opinion Issued: Dec. 4, 2007.

Sheehan Phinney Bass + Green, P.A., of Manchester (James S. LaMontagne on the brief and orally), for the petitioner.

Law Offices of Edward W. Richards & Associates, P.C., of Nashua (Edward W. Richards and Tanya Pardo on the brief, and Mr. Richards orally), for the respondent.

BRODERICK, C.J.

The petitioner, Singer Asset Finance Co., LLC (Singer), appeals orders of the Superior Court (Morrill, J.) granting summary judgment in favor of the respondent, Debora Wyner, on its request for declaratory relief and claims for conversion and breach of contract. Singer also appeals the amount of damages awarded on its claim for unjust enrichment. Wyner cross-appeals the trial court's dismissal of her claims for tortious interference with contractual relations and unjust enrichment. We affirm.

I

The following facts are not disputed. In 1995, Wyner resolved a medical malpractice claim by entering into a structured settlement agreement. Under the agreement, she was entitled to a series of payments commencing in May 1995 and ending in May 2019. The settlement agreement contains the following provisions:

[Wyner] nor any payee may not assign, anticipate, pledge or encumber said payments, and any attempt to do so shall not bind [the underlying tort suit defendant's insurer].

....

[This agreement] shall be binding upon and inure to the benefit of the ... successors and assigns of [both Wyner and the insurer].

The settlement agreement also provides that it "shall be construed and interpreted in accordance with the law of the State of New Hampshire."

The settling insurer in Wyner's tort suit assigned its obligation to make periodic payments to Transamerica Annuity Service Corporation (TASC). TASC, in turn, purchased an annuity contract from Transamerica Occidental Life Insurance Company (TOLIC) to fund the payments to Wyner.

In 1996, Wyner contacted an agent of Singer in the State of Washington to negotiate a sale of some of her periodic payments for cash. At the time, she wanted to sell some payments to be able to purchase "a place of [her] own" and to "keep [her] lifestyle the same" as it had been prior to her injury. Singer ultimately agreed to pay Wyner $66,885 for a block of payments totaling $139,375. In 1997, Singer paid Wyner $23,490 for a second block of periodic payments totaling $171,077. At the time of each of these transactions, Wyner executed a purchase agreement and an "Absolute Assignment and Waiver of Claim." Singer contends that under these agreements, Wyner released any rights, claims and interests to any benefits or proceeds that she possessed with respect to the periodic payments. Each purchase agreement contained a clause stating: "This Agreement, the Related Documents and the Ancillary Documents shall be governed, construed and enforced in accordance with the substantive laws of the State of New York without regard to its choice of law rules."

In late 1996, Wyner opened a deposit account in New York, into which she directed her payments from TOLIC. From December 1996 through May 2004, her payments were deposited into this drop account, and Singer made regular withdrawals from it. TOLIC was never made aware that its payments were effectively going to Singer. This arrangement remained in place until May 2004, when Wyner contacted TOLIC and redirected the periodic payment checks to her home address in New Hampshire. Singer subsequently filed suit against Wyner, TASC and TOLIC, for, inter alia, declaratory relief, breach of contract, conversion, and unjust enrichment. In response, Wyner filed counterclaims for unjust enrichment, tortious interference with contractual relations, and a violation of the Washington consumer protection act.

The parties filed cross-motions for summary judgment on all of their claims, and the superior court issued a series of orders addressing those motions. First, in March 2006, the superior court ruled that it would apply New York law to Singer's claims arising from any alleged violations of its purchase agreements with Wyner. In May, the superior court ruled that Wyner's assignment of her periodic payments to Singer was not enforceable. Relying upon Singer Asset Finance Co. v. Bachus, 294 A.D.2d 818, 741 N.Y.S.2d 618 (2002), the trial court ruled that in New York, "the recipient of the non-assignable periodic payment settlement agreement lacks the power as well as the right to assign," and that Wyner could not waive the anti-assignment clause in her settlement agreement. The trial court therefore: (1) granted summary judgment in favor of Wyner with respect to any alleged breach of the purchase agreements; (2) granted summary judgment in favor of Singer on its claim for unjust enrichment; and (3) granted summary judgment in favor of Singer with respect to Wyner's Washington-based consumer protection claim.

The superior court issued a third order in August ruling that Singer's common law unjust enrichment claim would be resolved under New Hampshire law. Finally, in September, the court ruled that the statute of limitations barred Wyner's claims for tortious interference with contractual relations and unjust enrichment, declined to award attorney's fees to either party, and entered judgment for Singer on its unjust enrichment claim in the amount of $8,105.09, plus statutory interest from the date of its petition.

On appeal, Singer argues that the superior court erred by: (1) ruling that under New York law, the anti-assignment language in Wyner's settlement agreement was enforceable, rendering the periodic payments non-assignable; (2) ruling that under New York law, Wyner did not waive, and was not estopped from asserting, the anti-assignment language in her settlement agreement; and (3) awarding insufficient damages under New Hampshire law on its unjust enrichment claim. We note that in her brief, Wyner suggests that New Hampshire law should guide our interpretation and application of the anti-assignment language in her settlement agreement. She also cross-appeals, arguing that the trial court erred by ruling that her tortious interference with contractual relations and unjust enrichment claims were time-barred. We address each issue in turn.

II

In an appeal from an order granting summary judgment, "[w]e review the trial court's application of the law to the facts de novo. " St. Onge v. MacDonald,

154 N.H. 768, 770, 917 A.2d 233 (2007). We first turn to the preliminary choice of law issues raised by Wyner. She argues on appeal that our analysis of the effect of the anti-assignment language in her settlement agreement should utilize New Hampshire law, in light of the express choice of law provision in that document. Singer, on the other hand, maintains that Wyner failed to raise this argument before the trial court, and thereby failed to preserve the issue for our review. We agree. See generally

Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250, 855 A.2d 564 (2004).

We observe that in her objection to Singer's motion for summary judgment, Wyner stated: "The [respondent] does not necessarily disagree with the allegation that New York law applies [to this matter], however, if the Court so rules, the [respondent] should be awarded time to revise her pleadings, including her Counterclaim...." The trial court relied upon this statement, and remarked that "[t]he respondent does not necessarily object to applying New York law" in its first summary judgment order. Moreover, Wyner failed to object to the trial court's application of New York law in any subsequent pleading. Indeed, she filed a revised motion for summary judgment affirmatively citing New York case law, which the trial court granted in substantial part.

Generally, a party must make a specific and contemporaneous objection during trial court proceedings to preserve an issue for appellate review. See Milliken v. Dartmouth–Hitchcock Clinic, 154 N.H. 662, 665, 914 A.2d 1226 (2006). "It is a long-standing rule that parties may not have judicial review of matters not raised in the forum of trial." Red Oak, 151 N.H. at 250, 855 A.2d 564. Since "we will not review any issue that was not raised below," Milliken, 154 N.H. at 665, 914 A.2d 1226, we now assume without deciding that the superior court's application of New York law when evaluating the enforceability of the purchase agreements between Singer and Wyner was proper. Thus, we will evaluate the substance of Singer's contract claims under New York law.

III

With respect to Singer's contract claims, we note that in 2002, New York enacted a Structured Settlement Protection Act "in response to the growing number of factoring companies using ... the allure of quick and easy cash[] to induce settlement recipients to cash out future payments ... at substantial discounts, depriving victims and their families of the long-term financial security their structured settlements were designed to provide." Singer Asset Fin. Co., LLC v. Melvin, 33 A.D.3d 355, 822 N.Y.S.2d 68, 70 (2006) (quotation omitted); see N.Y. Gen. Oblig. Law § 5–1706 (McKinney Supp.2007). As a result, transfers such as the ones at issue in this case are now prohibited in New York "unless approved by a court of competent jurisdiction based upon express findings ... that the transfer is in the best interest of the payee and that the discount rate, fees and expenses used to determine the net amount advanced are fair and reasonable." Melvin, 822 N.Y.S.2d at 70; see, e.g., In re New York, LLC, No.2007–1721, 2007 WL 2492235, at *3–4 (N.Y.Sup.Ct.2007) (trial court order denying petition to sell structured settlement payments). Our consideration of the instant matter, however, is constrained by New York contract law as it existed when Wyner entered into her purchase agreements with Singer. Melvin, 822 N.Y.S.2d at 70.

In New York, "it has been consistently held that assignments...