2006-763, MARK POLAND & a. v. PAUL J. TWOMEY & a.

The defendants, Attorney Paul J. Twomey and Twomey & Sisti,

Devine, Millimet & Branch, P.A. Georgette Poland, to execute a release. We affirm. settlement agreement, notwithstanding the refusal of the plaintiffs, Mark and

THE SUPREME COURT OF NEW HAMPSHIRE Donald L. Smith on the brief), for the defendants.

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as p. 2 Please send the release you want signed

remedy of specific performance. that the settlement agreement was enforceable and by ordering the equitable On appeal, the defendants contend that the trial court erred by finding

or attorney’s fees to any of the parties. the underlying matter, or the present litigation. No costs, interest any further action by any of the parties for any cause arising out of The Polands will settle for $125,000 . . . . [I]ncluded is a waiver of

court ordered specific performance. This appeal followed. $125,000, and that the resulting settlement agreement was enforceable. The nevertheless authorized Dibble to settle their claims with the defendants for trial court found that although the plaintiffs did not execute the release, they proceedings in the trial court in 2006. Following an August 2006 hearing, the relevant part, as follows: length in this court and in the trial court. The instant appeal arises from On Sunday, March 30, Dibble sent an e-mail to Dunn, which states, in Since then, the parties have litigated the validity of the settlement at

the offer open until April 1. consideration. he was authorized to make a final settlement offer of $125,000 and would keep $125,000, but Mrs. Poland refused to sign unless she received additional entered into settlement negotiations. On March 28, Dunn e-mailed Dibble that Accordingly, Mr. Poland agreed to sign the release for his receipt of the In March 2003, Dibble and the defendants’ counsel, Andrew Dunn, his case for $125,000, the authorization did not include Mrs. Poland’s claim. release, the Polands claimed that when Mr. Poland authorized Dibble to settle release the defendants wanted signed by the Polands. Upon receiving the (Emphasis added.) Following this e-mail, Dunn promptly sent Dibble the

. . . I agree that none of the funds will be distributed until

settling her case. The Polands alleged damages including loss of consortium. Twomey negligently represented them and that he pressured Mrs. Poland into against Twomey and his law firm, Twomey & Sisti. The Polands alleged that Dissatisfied, the Polands retained Charles Dibble in a malpractice suit executed release has been returned to you. check has cleared, the docket markings have been filed and the

Poland’s case. before trial. In June 1997, the jury returned a defendant’s verdict in Mr. settlement, cf

p. 3 While it may be that executed releases are not essential in every

release, they remain subject to liability. implied condition of all settlement agreements and without an executed necessary. In response, the defendants urge that an executed release is an the only means by which to terminate litigation and, therefore, a release is not settlement process. Additionally, Dibble urges that an executed release is not the level of a contractual term but is simply a method of concluding the Dibble argues that his e-mail reference to an executed release does not rise to distributed after the defendants were provided with an executed release. terms, substantiates that he was aware that settlement funds would only be Dibble’s acceptance of the settlement offer on behalf of the Polands, by its own 2003 accurately framed the essential terms of the settlement agreement. 3 In this case, the correspondence between Dibble and Dunn in late March

and Settlement § 49 (2000). Jur. 2d Judgments § 174 (2000). See generally 15A Am. Jur. 2d Compromise functional equivalent of an executed release through a court order. Cf. 46 Am. executed release was a term of the agreement, the defendants can derive the was the primary consideration agreed upon for settlement. Although an here, an executed release was an essential term of the agreement because it

. Gannett v. Merchants Mut. Ins. Co., 131 N.H. 266, 270 (1988),

§ 34.01, at 100 (1998). by law. 5 R. Wiebusch, New Hampshire Practice, Civil Practice and Procedure parties are free to settle a case on any terms they desire and that are allowed v. Allstate Ins. Co., 141 N.H. 777, 779 (1997) (citation omitted). Generally, together with all the provisions of their agreement taken as a whole.” Huguelet parties at the time of their agreement and the object that was intended thereby, generally governed by principles of contract law. Cf ascertaining the intent of the parties, we will consider the situation of the Settlement agreements are contractual in nature and, therefore, are contract and manifest an intention to be bound by the contract. Id. “In is, the parties have the same understanding of the essential terms of the occurs when there is mutual assent to the essential terms of the contract; that Pillsbury Lake Water Dist. question of law and fact. Cf, 153 N.H. 818, 821 (2006). A meeting of the minds We review the trial court’s ruling that a settlement existed as a mixed offer, acceptance, consideration and a meeting of the minds. See Durgin v. Ins. Co., 132 N.H. 742, 745 (1990). A valid enforceable settlement requires

findings, we review the matter independently under a plain error standard. Id. clearly erroneous. Id. If, however, the court misapplies the law to its factual We will not overturn the trial court’s ruling on a mixed question unless it is facts and the consequent determination of whether the rule is satisfied. See id. Mixed questions of law and fact concern the application of a rule of law to the

rendered. Restatement (Second) of Contracts essentially the same effect as if the performance due under a contract were Affirmed

Halstead v. McMurray agreements made by authorized attorneys acting on behalf of their clients. New Hampshire jurisprudence strongly favors enforcement of settlement

error. Generally, a decree of specific performance is intended to produce trial court’s ruling that the settlement agreement is enforceable and find no The Polands have no surviving claims against the defendants. We uphold the out of the malpractice action just as effectively as would an executed release. trial court’s order plainly bars and releases all of the Poland’s claims arising the case. Gutbier v. Hannaford Bros. Co. agreement. The Polands will receive the authorized settlement amount and the the trial court to be exercised according to the circumstances and exigencies of provides the parties with exactly what they bargained for under the settlement The suitability of affording equitable relief rests in the sound discretion of performance or repudiation. Id. Here, the trial court’s equitable decree Such relief is granted when there has been a breach of contract, either by non-

a., No. 2004-0054 (March 15, 2005); see RSA 311:13 (2005). to seek enforcement of the agreement. Mark Poland & a. v. Paul J. Twomey & to enter into a settlement agreement with the defendants. Dibble has standing N.H. 546, 552 (1985). The trial court found that the Polands authorized Dibble

of discretion standard). State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise the court’s ruling was unreasonable to the prejudice of their case. See id; cf. trial court’s decision is not sustainable, the defendants must demonstrate that unsustainable exercise of discretion. Id. at 541-42. In order to show that the uphold the trial court’s equitable order unless its decision constitutes an

to perform any promise which forms the whole or part of a contract.” West “A breach of contract occurs when there is a failure without legal excuse,

only Dibble, should lie. of specific performance requested by neither the Polands or the defendants but remedy. More to the point, the question is whether equitable relief in the form Polands are in breach of this agreement. There remains the question of there was a valid agreement formed on March 30. Without question, the the defendants. We affirm the well supported ruling of the trial court that Here, the Polands failed to perform by refusing to sign the release provided by Gate Village Assoc. v. Dubois, 145 N.H. 293, 298 (2000) (quotation omitted).