Stewart v. Bader

Decision Date22 August 2006
Docket NumberNo. 2004–820.,2004–820.
Citation154 N.H. 75,907 A.2d 931
CourtNew Hampshire Supreme Court
Parties Lois STEWART, Administrator of the Estate of Vicki Lynn Bader v. Seth BADER.

Borofsky, Amodeo–Vickery & Bandazian, P.A., of Manchester (Stephen E. Borofsky and Erica Bodwell, on the brief, and Mr. Borofsky orally), for the plaintiff.

B. Michael Cormier, of Haverhill, MA, by brief and orally, for the defendant.


The defendant, Seth Bader, appeals the judgment entered by the Superior Court (McHugh, J.) in favor of the plaintiff, Lois Stewart, Administrator of the Estate of Vicki Lynn Bader, in the plaintiff's tort action. We affirm.

The trial court found the following facts. In May 1998, a jury convicted the defendant of first-degree murder. See State v. Bader, 148 N.H. 265, 267, 808 A.2d 12 (2002), cert. denied, 538 U.S. 1014, 123 S.Ct. 1945, 155 L.Ed.2d 850 (2003). Specifically, the jury found that, on August 24, 1996, the defendant purposely caused the death of his former wife, Vicki Bader, by shooting her in the head. The defendant was sentenced to life in prison without the possibility of parole.

The defendant married Vicki in May 1991. In August 1993, she gave birth to the couple's child, Samuel. The couple later adopted the defendant's cousins, Joseph and Matthew. In May 1994, the defendant sought a divorce, which became final a month later.

In January 1995, Vicki attempted suicide. While she was hospitalized, the defendant requested and was granted custody of the children. The defendant then engaged in a series of acts intended to remove the children from Vicki and alienate them from her. For instance, he engaged in repeated legal attacks that ultimately resulted in the court reducing Vicki's visitation with her baby to seven hours of supervised visitation per week. In addition, he sought to alienate Joseph and Matthew from her. He repeatedly told Joseph that Vicki was "fat" and "stupid."

Beginning in February 1995, the defendant perpetrated a number of other acts, intended to provoke Vicki to commit suicide. For instance, he terminated payments to her treating psychiatrist, which cut off her access to psychiatric help and stopped paying her financial support, which cut off her access to legal help. In March, April and May 1995, he directed his son, Joseph, to write and mail "hate" letters to her. In June 1995, Vicki again attempted suicide.

In January 1996, the defendant told Vicki that he would consider sharing custody of the children with her if she would discontinue her legal efforts to obtain custody. When she refused, he directed Joseph to go to her home and roast her two pet parakeets in the oven. Other acts for which the defendant was responsible included: having Vicki's car scratched and its tires slashed on February 14, 1996; on that same day, having the windows of her home shot out with a BB gun; and, at the end of April 1996, having an unknown man come to Vicki's home to tell her that "she would not live long enough to get custody of her baby."

In August 1996, the defendant killed Vicki by shooting her in the head with a .22 caliber gun. He was not arrested until April 12, 1997, after her body had been discovered in a remote wooded grave in Maine. Two days after the defendant's arrest, the plaintiff filed two lawsuits against him. In one action, the plaintiff sought damages for Vicki's wrongful death. The plaintiff later amended this action to seek enhanced compensatory damages and damages for intentional, reckless or negligent infliction of emotional distress. In the other action, the plaintiff sought to attach the defendant's assets. The two cases were consolidated. Following a bench trial, the court awarded the plaintiff $500,000 on her emotional distress claims; this award included enhanced compensatory damages. On her wrongful death claim, the court awarded $2,190,544 in compensatory damages and $2,190,544 in enhanced compensatory damages, for a total damage award of $4,881,088.

On appeal, the defendant challenges several of the trial court's rulings during the course of this litigation. He argues that the trial court erred when it: (1) denied his motion to unseal the case file; (2) ruled that he could not have access to the plaintiff's contingency fee agreement; (3) ruled that his murder conviction collaterally estopped him from arguing that he did not murder Vicki; (4) denied his motion for summary judgment upon the plaintiff's intentional infliction of emotional distress claim; (5) failed to sever the plaintiff's wrongful death and intentional infliction of emotional distress claims; (6) granted summary judgment to the plaintiff with respect to his liability for enhanced compensatory damages based upon his murder conviction; (7) awarded excessive damages to the plaintiff; and (8) denied him his homestead exemption, see RSA 480:1 (Supp.2005). We address each argument in turn.

I. Motion to Unseal

The defendant first argues that the trial court erred when it denied his motion to unseal the case file. He asserts that this order deprived him of his constitutional right to a public trial. See U.S. CONST. amend. VI ; N.H. CONST. pt. I, art. 15.

The Federal Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. CONST. amend. VI. The Sixth Amendment confers the right to a public trial only upon a defendant and only in a criminal case. Gannett Co. v. DePasquale, 443 U.S. 368, 387, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). Our State Constitution does not contain a similar clause, but Part I, Article 15 has been held to guarantee a criminal defendant's right to a public trial. See State v. Weber, 137 N.H. 193, 196, 624 A.2d 967 (1993).

We decline the defendant's invitation to recognize such a right in this civil matter given his failure to cite any authority for the proposition. "[I]n the realm of appellate review, a mere laundry list of complaints regarding adverse rulings by the trial court, without developed legal argument, is insufficient to warrant judicial review." Douglas v. Douglas, 143 N.H. 419, 429, 728 A.2d 215 (1999) (citation omitted); see Keenan v. Fearon, 130 N.H. 494, 499, 543 A.2d 1379 (1988) ("offhand invocations" of constitutional rights supported by neither argument nor authority warrant no extended consideration).

II. Contingency Fee Agreement

The defendant next asserts that the trial court erred when it denied him access to the plaintiff's contingency fee agreement. He contends that because the agreement was not subject to the attorney-client evidentiary privilege, the court erred by denying him access to it.

The record shows that the plaintiff filed her contingency fee agreement with the court pursuant to RSA 508:4–e, III (1997) (repealed 2002). In February 2002, the defendant moved to unseal the case file, including the contingency fee agreement. The trial court denied this motion in April 2002 on the ground that RSA 508:4–e, III was unconstitutional. We declined the defendant's interlocutory appeal of this ruling.

The defendant then sought access to the contingency fee agreement in a series of pretrial motions, which either the trial court denied or upon which it declined to rule. In these pretrial motions, the defendant argued that he was entitled to access to the agreement, in part, because it was not protected by the attorney-client privilege.

We review the trial court's rulings under our unsustainable exercise of discretion standard. "To meet this standard, the defendant must demonstrate that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case." Figlioli v. R.J. Moreau Cos., 151 N.H. 618, 626, 866 A.2d 962 (2005).

The defendant argues that had the court allowed him access to the plaintiff's contingency fee agreement, he would have used it to argue that "the tort action amounted to looting of the children's assets by attorneys who did not represent the children." As the plaintiff aptly observes, this argument "was not relevant or material to any question or element that had to be proved in the case," and thus, depriving the defendant of this argument did not constitute prejudice. Because the defendant has failed to demonstrate that the trial court's rulings were "clearly untenable or unreasonable to the prejudice of his case," we hold that the court sustainably exercised its discretion. Id.

III. Collateral Estoppel Effect of Criminal Conviction

The defendant next contends that the trial court erred when it ruled that, under the doctrine of collateral estoppel, his murder conviction precluded him from arguing that he did not murder Vicki. He asserts that his conviction cannot have preclusive effect because: (1) he chose not to testify at his criminal trial; and (2) one of the prosecution's key witnesses has since, allegedly, recanted.

A. Preservation of Argument Concerning Decision Not to Testify

We first briefly address the plaintiff's assertion that the defendant did not preserve his argument that his conviction lacked preclusive effect because he did not testify at his criminal trial. Specifically, the plaintiff contends that the defendant did not preserve this issue because he never made an offer of proof as to what he would have testified had he chosen to do so.

The plaintiff is mistaken. The defendant's argument does not depend upon what his testimony would have been. Rather, in effect, he asserts that because he chose not to testify, he was denied a fair trial and, therefore, his criminal conviction cannot have preclusive effect. The content of the testimony he would have given at the criminal trial is immaterial to this assertion.

Moreover, as the affidavit attached to his opposition to the plaintiff's summary judgment motion makes clear, the defendant did make an offer of proof with respect to the evidence he would produce if his conviction did not have collateral estoppel effect in the civil trial. In that affidavit, he averr...

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