2004-231, FRANK VAN DER STOK v. WAYNE VAN VOORHEES

receiving dialysis treatment. The defendant claims that the plaintiff seasonal home near Dartmouth - Hitchcock Medical Center, where his wife was negotiations, the defendant explained to the plaintiff that he wanted to build a Hanover between the defendant as buyer and the plaintiff as seller. During judgment. This case arises out of a transaction for the sale of real estate in The trial court noted the following facts in its order on summary

vacate in part and remand. fees and costs to the defendant, Wayne Van Voor hees. We affirm in part, (Vaughan, J.) rulings denying him summary judgment and awarding attorney’s NADEAU, J. The plaintiff, Frank Van Der Stok, appeals the Trial Court’s

orally), for the defendant. Clauson & Atwood, of Hanover (K. W illiam Clauson on the brief and

brief and orally), for the plaintiff. Whittington Law Associates, PLLC, of Hanover (W.E. Whittington on the

No. 2004 - 231 Grafton

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

been granted. See RSA 491:8 - a, III (1997). entitled to judgment as a matter of law, then summary judgment should have (1994). If no genuine issue of material fact existed, and the moving party was Co., 151 N.H. 71, 7 p. 2 2 (2004); see also Dwire v. Sullivan, 138 N.H. 428, 430 the light most favorable to the non - moving party.” Peerless Ins. v. Vt. Mut. Ins. affidavits and other evidence, and all inferences properly drawn from them, in judgment. In reviewing a denial of summary judgment, “we consider the The plaintiff first argues that the tri al court erred in denying summary

waited for all issues in the case to be finally decided before bringing his appeal. . . . . Germain v. Germain, 137 N.H. 8 p. 2 2, 84 (1993). The plaintiff properly proceedings . . . we cons ider any appeal from such an order to be interlocutory proceedings before it, for example, by deciding some but not all issues in the “Generally, when a trial court issues an order that does not conclude the attor ney’s fees before filing his notice of appeal. We agree with the plaintiff. 7(1)(A), (C). The plaintiff counters that he properly waited for a final ruling on notwithstanding the verdict and to set aside the verdict. See Sup. Ct. R. was filed more than thirty days after the denial of his motion for judgment The defendant argues that the plaintiff’s appeal is unti mely because it

no damages but did award him attorney’s fees. The plaintiff appealed. and for the defendant on his counterclaims. The jury awarded the defendant case went to trial. The jury found against the plaintiff on his remaining claim whether the lot was buildable. The court denied summary judgment and the could not have reasonably relied upon his statements or omissions regarding The plaintiff moved for summary judgment, arguing that the defendant

prosec ution. fraud/misrepresentation and for abuse of process and malicious civil bad checks statute, RSA chapter 544 - B. The defendant counterclaimed for on the check as a negotiable instrument. He also brought a claim under the The plaintiff brought an action on the purchase and sale agreement and

build a seasonal home. The defendant then stopped payment on his check. inquire about the property and was told of the plaintiff’s denied application to the plaintiff. Su bsequently, the defendant went to the Hanover town offices to the defendant tendered a check for the purchase price and was given a deed by The parties entered into a purchase and sale agreement. At the closing,

application had been denied. to the Hanover Zonin g Board to build a seasonal home on the property and the They did not discuss, however, the fact that the plaintiff had previously applied parties discussed the possibility of the plaintiff building the defendant’s house. represente d to him that “he could build a house on the property.” In fact, the p. 3 3

“the law does not temporize with trickery or duplicity,” id. at 601: Moreover, we agree with Judge Fuld, dissenting in Danann Realty Corp., that in this case that the particular lot he was buying was a buildable lot. person on notice that he could not rely upon the specific representation made representations as to land use law or regulations” would put a reasonable that, as a matter of law, the disclaimer in this case that “Seller makes no We decline to adopt that reasoning here. First, we are not convinced

Danann Realty Corp., 157 N.E.2d at 599 (citation omitted).

representations. agreement was executed in reliance upon these contrary oral disclaimer destroys the allegations in plaintiff’s complaint that the as to which it now claims it was defrauded. Such a specific that it is not relying on any representations as to the very matter [P]laintiff has in the plainest language announced and stipulated

the court noted: Harris, 157 N.E.2d 597, 599 (N.Y. 1959). In Danann Realty Corp., for instance, See LaFazia v. Howe, 575 A.2d 182, 185 (R.I. 1990); Danann Realty Corp. v. alleged reliance and cites cases from other jurisdiction s to support his position. plaintiff, however, asserts that a specific contractual disclaimer can negate any Goldstein v. Gilman, 9 p. 3 3 N.H. 106, 109 (1944), bars an action for fraud. The State Realty, Inc., 116 N.H. 690, 691 (1976), nor the parol evidence rule, see We have held that neither a standard merger clause, see Colby v. Granite

law or regulations.” We disagree. agreement provided that the “Seller makes no representations as to land use that any reliance could not be reason able where the purchase and sale reliance on the plaintiff’s alleged misrepresentation. Specifically, he argues The plaintiff contends that the defendant could not show reasonable

demonstrate justifiable reliance.” Id. 1 p. 4 45 N.H. 7 p. 3 3, 77 (2000). In addition, the party seeking to prove fraud “must truth with the intention to cause another to rely upon it.” Snierson v. Scruton, representation with knowledge of its falsity or with conscious indifference to its seeking to prove fraud must establish that the other party “made a Trust Co. v. Weisman, 122 N.H. 397, 400 (1982) (citations omitted). The party hence can be raised as a defense to a claim based on the agreement.” Nashua by means of fraud or negligent misrepresentation is an actionable tort and “New Hampshire law recognizes that the procuring of a contract or conveyanc e have held that fraud in the inducement is a valid defense in a contract action: The defendant raised fraud as a defense to the plaintiff’s claims. We 4

Ins. Co., 126 N.H. 67 p. 4 4, 679 (1985). of bad faith made by the jury. See Drop Ancho r Realty Trust v. Hartford Fire T he judge based his decision to award attorney’s fees upon the factual finding decision to award attorney’s fees lies within the discretion of the trial court.” the decision himself and speci fically stated in his post - trial order that “the instructed the jury on the awarding of attorney’s fees, he appears to have made We find this issue to be moot, however, because although the trial judge attorney’s fee s to the jury because it is an issue for the trial judge, not the jury. The plaintiff contends that the court erred in submitting the issue of

70 p. 4 4 (2004). deference to the trial court’s decision.” Arcidi v. Town of Rye, 150 N.H. 694, att orney’s fees under an unsustainable exercise of discretion standard, giving attorney’s fees and costs to the defendant. “We review the trial court’s award of The plaintiff also contends that the trial court erred in awarding

fact. trial court erred by finding an irrelevant issue to be a genuine issue of material entitled to judgment as a matter of law, we need not address his cl aim that the Snierson, 1 p. 4 45 N.H. at 77. Because we conclude that the plaintiff was not indifference to its truth with the intention to cause another to rely upon it.” fraud “made a representation with knowledge of its falsity or with conscious positive fraud; that is, instances in which the party alleged to have committed judgment. We emphasize, however, that our holding is limited to instances of the defense of fraud, and therefore the trial court correctly denied summary defendant was not precluded by the contractual disclaimer from establishing Hutchins, 28 N.H. 561, 576 (1854). Accordingly, we conclude that the or the policy of law, or having injustice or fraud for their object.” King v. that “courts do not lend their aid to enforce agreements against the pr inciples ground . . . .” Jones v. Emery, 40 N.H. 348, 350 (1860). We have also stated records and judgments of courts, incontrovertible as they are on every other vitiates every thing – contracts, obligations, deeds of conveyance, and even the principle of the common law is well and distinctly settled, that positive fraud This approach comports with our case law. We long ago observed: “The

603 (Minn. 1927))(citation omitted). Id. at 60 p. 4 4 (quoting Ganley Bros., Inc. v. Butler Bros. Bldg Co., 212 N.W. 602,

good faith.” the purpose of the law to shield only those whose armor embraces enough to write such a contract. Fraud destroys all consent. It is is not enforceable because of public policy. Language is not strong to be drawn that will protect a person against his own fraud. Such “The law should not, and does not, permit a covenant of immunity p. 5 5

faith.” Moreover, the trial court noted that “the jury specifically found in attachment on the basis of false representations” and that his “suit is in bad The d efendant claimed, however, that the plaintiff “obtained an ex parte

cannot be sustained. Accordingly, we vacate the fee award. Thus, the trial court’s award of fees under the “established right” exception are merely causes of action, which must be litigated in order to obtain relief. process and malicious civil prosecution. Rather than established rights, these He brought counterclaims for fraud/misrepresentation and for abuse of The defendant’s claims in this case, however, were not of that character.

without” having to bring suit. Funtown, 129 N.H. at 3 p. 5 54. vested and statutory rights are the kind “which should have been freely enjoye d decision of this court, Harkeem v. Adams, 117 N.H. 687, 691 (1977). Such benefits to which his right was “clearly established” by statute and a prior and where a claimant was forced to litigate in ord er to receive unemployment a waterslide which it “had a vested right to construct,” id. (quotation omitted), exception where a party was required to litigate against a town in order to build brackets and ellipsis omitted; emphasis added). We have employed this Funtown USA v. Town of Conway, 129 N.H. 352, 354 (1987) (quotation,

proceeding to the responsible party . . . . shifts the cost of what should have been an unnecessary judicial on the basis of bad faith is appropriate. This principle merely freely enjoyed without such intervention, an award of counsel fees a clearly defined and established right, which should have been [W]here an individual is forced to seek judicial assistance to secure

exception, however, was erroneous. The exception, more fully set forth, is: if bad faith can be established.” (Quotation omitted). The court’s use of this individual is forced to seek judicial assistance to secure a clearly defined right plaintiff. Rather, th e court cited the exception for situations “where an The trial court did not award fees on either ground challenged by the

of Portsmouth, 137 N.H. p. 5 572, 574 (1993) (quotations and citation omitted). against an opponent whose position is patently unreasonable.” Daigle v. City capricious or bad faith conduct and cases in which parties are forced to litigate unnecessarily prolonged through a party’s oppressive, vexatious, arbitrary, Exceptions to this rule “include instances where litigation is instituted or Clipper Affiliates v. Checovich, 138 N.H. 271, 2 77 (1994) (emphasis omitted). party to a lawsuit is responsible for payment of his or her own attorney’s fees.” close enough to submit to the jury. “The general rule in this State is that each under the exception for “patently u nreasonable” litigation where the case was part of tort recovery and that an award of fees against him cannot be justified The plaintiff also contends that attorney’s fees are not awardable as a p. 6 6

con curred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

court.” Cutter v. Town of Farmington, 12 p. 6 6 N.H. 836, 843 (1985). however, th at “[t]he award of costs lies within the sound discretion of the trial opportunity to reconsider that award in light of our ruling. We emphasize, his counterclaims, we also vacate the award of costs to afford the trial court the 661 (1998). Because we have concluded that the defendant did not prevail on which that party prevailed.” Laramie v. Sears, Roebuck & Co., 142 N.H. 653, tried in one suit, we have allowed a party to recover costs for those issues on In addition, “[w]here separate and distinct causes of action have been

the fee award accordingly. analytically severable from his defense of the plaintiff’s claim and, if so, reduce on remand, it must determine whether the defendant’s counterclaims are Funtown, 129 N.H. at 35 p. 6 6. Accordingly, if the trial court awards attorney’s fees on unsuccessful claims.” Appeal of Brown, 143 N.H. 112, 121 (1998); see also analytically severable, “any fee award should be reduced to exclude time spent claims and not others, and the successful and unsuccessful claims are prevail on, the plainti ff’s claim against him. Where a party prevails on some The defendant did, however, successfully defend against, and therefore

counterclaims for purposes of an award of attorney’s fees. jury awarded the defendant no damages, he did not prevail on his in this case.” Ferrero v. Coutts, 134 N.H. 292, 295 (1991). Thus, because the . . . tort claim, and the absence of such proof defeats the [defendant’s] claim[s] prosecution. “Damages are of course an element to be proven . . . with any fraud/misreprese ntation and for abuse of process and malicious civil The defendant brought two counterclaims in tort for

We agree with the plaintiff in part. that the defendant did not prevail where the jury awarded him no damages. bec ause the defendant was not a prevailing party. Specifically, he contends The plaintiff also argues that the award of fees and costs was improper

exception. remand for a determination of whether fees should be awarded under this applicable. Daigle, 13 p. 7 7 N.H. at 574 (1993) (quotation omitted). We therefore oppressive, vexatious, arbitrary, capricious or bad faith conduct” may be for litigation “instituted or unnecessarily prolonged through a party’s the plaintiff had been wanton, malicious and oppressive.” Thus, the exception response to question five of th e Special Jury Question[s], that the conduct of 7