Tiberghein v. B.R. Jones Roofing Co.
Decision Date | 28 August 2007 |
Docket Number | No. 2006–657.,2006–657. |
Citation | 931 A.2d 1223,156 N.H. 110 |
Court | New Hampshire Supreme Court |
Parties | Charles TIBERGHEIN and another v. B.R. JONES ROOFING COMPANY. |
Burns, Bryant, Cox, Rockefeller & Durkin, of Dover (Paul R. Cox and Sharon A. Spickler on the brief, and Ms. Spickler orally), for the plaintiff.
Donahue, Tucker & Ciandella, of Exeter (Robert M. Derosier on the brief and orally), for the defendant.
The plaintiffs, Charles and Janet Tiberghein, appeal orders of the Superior Court (Nadeau, J.) confirming that the defendant, B.R. Jones Roofing Company, satisfied the arbitrator's award through a tender that reflected credits for previous settlements. We affirm.
This is the second time this matter has come before us. A detailed account of the underlying facts of this case can be found in our previous decision, Tiberghein v. B.R. Jones Roofing Co., 151 N.H. 391, 856 A.2d 21 (2004) (Tiberghein I ). We recite only those facts pertinent to this appeal.
On October 15, 1995, Charles Tiberghein slipped and fell on a puddle of water in the Durham Market and fractured his right ankle. Id. at 392, 856 A.2d 21. After the fall, store employees traced the water to a leak in the roof. Id. The defendant had repaired and restored the roof in 1992. Id. The defendant had provided a ten-year roofing guarantee, which stated that upon notice of defects, such as leaks, it would repair the roof and thereafter maintain it in a watertight condition. Id. The defendant was notified of roof leaks, yet failed to satisfy his guarantee. Id.
The plaintiffs sued: (1) the defendant; (2) Durham Market Place; (3) Hannaford Brothers, Inc., which sublet the property to Durham Market Place; and (4) Colonial Durham Associates, the owner of the shopping plaza. Id. The plaintiffs settled with Durham Market Place and Colonial Durham Associates whereby each agreed to pay the plaintiffs $32,500 ($65,000 total). Subsequently, the plaintiffs were joined in a cross-suit for indemnification filed by Hannaford against Durham Market Place. Hannaford alleged that it had been wrongfully named as a defendant. The plaintiffs paid $8,000 to settle that claim. Following the settlements, the only remaining parties were the plaintiff and the defendant. Id. After the superior court denied the defendant's summary judgment motion, the parties agreed to submit the case to binding arbitration. Id. The arbitrator found in favor of the plaintiffs and awarded them, collectively, $250,000. Id.
The defendant appealed the arbitrator's award to the superior court, which affirmed it. Id. at 392–93, 856 A.2d 21. Following an appeal by the defendant, we affirmed the superior court's decision. Id. In October 2004, the defendant's attorney forwarded a check in the amount of $192,152.33, which included interest from the date of the award, pursuant to RSA 336:1 (Supp.2006). This amount reflected a credit of $65,000, which included the $8,000 the plaintiffs remitted to Hannaford, for the settlements the plaintiffs received.
The plaintiffs disputed this amount and in July 2005, they asked the superior court to determine the balance due and order the defendant to pay it. The plaintiffs asserted that the defendant erroneously calculated the amount it owed by including the $8,000 the plaintiffs paid to Hannaford as part of the total amount they recovered from the settlements. The defendant argued that it had satisfied the arbitrator's award.
In January 2006, the plaintiffs amended their motion, claiming that the defendant should not have subtracted from the amount it owed, any of the $65,000 settlement the plaintiffs received. The court referred to the arbitrator the question of "whether the $250,000 award was intended to represent ... just the damages due ... as a result of the defendant's negligent conduct." The arbitrator responded:
Thereafter, the plaintiffs filed a motion to obtain final disposition on all pending issues, asking the court to find that the defendant was not entitled to reduce its payment for damages by taking a credit for the $65,000 already paid to the plaintiffs. On July 31, 2006, the trial court denied the plaintiffs' motion, ruling that the October 2004 payment of $192,152.33 fully satisfied the arbitrator's award. This appeal followed.
On appeal, the plaintiffs raise the following issues: (1) whether the defendant is entitled to take a credit under RSA 507:7–h (1997) and RSA 507:7–i (1997) against the arbitrator's award after we confirmed the award under RSA 542:8 (2007); and (2) whether the defendant's failure to raise the issue of its entitlement to the $65,000 credit in a motion to vacate the arbitration award now precludes the defendant from claiming such credit.
First, we identify several issues that have not been preserved for our review because they were not raised in the trial court. See Tiberghein I, 151 N.H. at 393, 856 A.2d 21. The plaintiffs contend that once an arbitration award has been confirmed by the superior court, "there can be no variation from it." Leach v. O'Neill, 132 N.H. 665, 667, 568 A.2d 1189 (1990) (quotation and brackets omitted). The plaintiffs rely upon RSA 542:8 (2007), which provides that, "[a]t any time within one year after the award is made any party to the arbitration may apply to the superior court for an order confirming the award, correcting or modifying the award." The plaintiffs argue that because the defendant failed to request a modification of the award to establish a credit under RSA 507:7–h and RSA 507:7–i within the statutory time limit, and as the trial court could not reduce the arbitration award outside the parameters of RSA 542:8, the defendant's request for the $65,000 credit was improper. Although the plaintiffs filed a motion in superior court arguing that the defendant was not entitled to the credit, they did not assert in any of their pleadings to the trial court that allowing the credit violated RSA 542:8. Therefore, we will not address this issue on appeal. See Tiberghein I, 151 N.H. at 393, 856 A.2d 21.
The plaintiffs raise two other issues for the first time on appeal. The plaintiffs claim that res judicata precludes the defendant from relitigating the amount owed to them per the arbitrator's award because any credits under RSA 507:7–h and RSA 507:7–i should have been litigated in Tiberghein I. The plaintiffs further argue that judicial estoppel bars the defendant from asserting inconsistent positions regarding modification of the award. Because these issues were not raised in the plaintiffs' motions to the trial court, or by motion for reconsideration, they are not properly preserved on appeal and we will therefore not consider their merit. See Tiberghein I, 151 N.H. at 393, 856 A.2d 21.
We now address the issues properly before us on appeal. The plaintiffs assert that RSA 507:7–h must be read in the context of RSA 507:7–e and RSA 507:7–i. They argue therefore, that the defendant is not entitled to a pro tanto, dollar-for-dollar credit under RSA 507:7–h for the settlement because RSA 507:7–e and RSA 507:7–i do not apply to arbitration awards.
RSA 507:7–i provides, in relevant part:
"In statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole." John A. Cookson Co. v. N.H. Ball Bearings, 147 N.H. 352, 357, 787 A.2d 858 (2001) (quotation omitted). We begin by considering the statutory language, construing its plain and ordinary meaning. Id.
The language of RSA 507:7–e, RSA 507:7–h and RSA 507:7–i does not restrict their application to court proceedings. Rather, reference to "the court," "a verdict" and "the jury" in RSA 507:7–i and RSA 507:7–e merely instructs the trial court on how to proceed when a credit is required in a trial proceeding. RSA chapter 507 (2007), as part of Title LII, "Actions, Process, and Service of Process," plainly does not limit the taking of a credit to court proceedings. RSA 507:7–h contains language that is generally applicable to both court and arbitration proceedings. The statute plainly affords a credit, determined by the consideration paid for a settlement, for all proceedings in which "2 or more persons [are] liable in tort for the same injury." RSA 507:7–h.
Accordingly, we agree with the defendant that "there is no language in RSA 507:7–h restricting its application to civil proceedings in law or equity," and we will not add words to the statute. RSA 507:7–h simply codifies the common law regarding such credits.
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