2005-855, EAST DERRY FIRE PRECINCT v. JOHN R. NADEAU &

for defendant John R. Nadeau. Cook & Molan, P.A., of Concord (Glenn R. Milner on the brief and orally),

East Derry Fire Precinct. and Dawnangela Minton on the brief, and Mr. Volinsky orally), for the plaintiff, Bernstein, Shur, Sawyer & Nelson, of Manchester (Andru H. Volinsky

editorial errors in order that corrections may be made before the opinion goes No. 2005-855 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as the sufficiency of the evidence. transcript of any hearing on the motion, or any motion to reconsider or ruling p. 2 provision of his contract. Nadeau appeals these actions as well as challenges

copy of Nadeau’s motion, EDFP’s objection, the trial court’s decision, the separation agreement, and ruled that he was not entitled to the indemnification

review this ruling. Nowhere in the materials submitted on appeal is there a trial court denied Nadeau’s motion to dismiss him from the case, rescinded the objection.” Nadeau, however, has not provided an adequate record for us to the trial court denied his motion “for all of the reasons set forth in the [EDFP’s]

two new appointees then brought a lawsuit against Nadeau and others. The accrued leave benefits. approved the separation agreement resigned. The remaining commissioner and lawsuit. We decline to address this argument. Nadeau states in his brief that $90,000 was paid to Nadeau. That same month, the two commissioners who Nadeau first argues that he should have been dismissed from the EDFP’s which the third commissioner was absent. Shortly thereafter, approximately I. Failure to Dismiss the Defendant

resigned in good standing, however, he would receive three weeks pay and all would receive nine months pay and any accumulated earned time. If he terminated by the EDFP for reasons such as the dissolution of the precinct, he and signed by him and two of the three commissioners during a meeting at termination of his employment Under one provision, if Nadeau were separation agreement was prepared by attorneys with Nadeau’s direct input Nadeau, thereby entitling him to the more substantial severance package. The create a separation agreement by which the commissioners would terminate position. He and one of the three fire commissioners, Alan Lundblad, agreed to Massachusetts. He planned to resign as chief of EDFP and take this new Nadeau applied for, and believed he had secured, the position in

different compensation, that govern severance payments to Nadeau upon November 23, 2004. There are two contract provisions, providing significantly employer. The parties agree that his employment with the EDFP ended on of 2004, Nadeau entered into negotiations with a potential Massachusetts commissioners that provided fire protection services to East Derry. In the fall EDFP, an independent municipal district governed by three elected The trial court found the following facts: Nadeau was the chief of the

was not entitled to indemnification. We affirm. repayment of a wrongfully distributed severance payment, and ruling that he with the plaintiff, East Derry Fire Precinct (EDFP), finding him liable for Superior Court (McHugh, J.) rescinding his employment separation agreement DALIANIS, J. Defendant John R. Nadeau appeals an order of the court did not commit an unsustainable exercise of discretion by ordering it.

p. 3 that the record contains sufficient evidence to support rescission; the trial

attorneys and propose the language of a Separation Agreement.” We conclude well have been the aggressor in that he was the first one to contact EDFP’s found that Nadeau was “an active participant in the scheme” and that he “may

“sweetheart deal” to describe the new separation agreement. The trial court

notes of conversations with Lundblad that used the words “blind sided” and at the November 23, 2004 meeting. In addition, the court cited the attorney’s resignation would be effectuated “under the guise” of a performance evaluation 3

EDFP, “the Chief and I are going to take it down,” as well as her notes that the notes of EDFP’s attorney stating that Lundblad had said, with regard to the cooperating commissioner. To support these findings, the trial court cited the Lundblad to reveal Nadeau’s imminent employment opportunity to the

particular case.” discretion of the trial court, depending upon the circumstances of each an equitable remedy the grant of which is always a matter within the sound 23, 2004 meeting from the third commissioner; and the failure of Nadeau and EDFP counsel; a ruse by Lundblad to conceal the real reason for the November and Lundblad to engineer the higher severance pay; Lundblad’s admissions to rests upon the relative equities of the parties as determined by the trial court.” was found by the trial court, including: the formulation of a plan by Nadeau To the contrary, considerable evidence of fraud and misrepresentation

the Separation Agreement which could allow the trial court to undo it.” misrepresentation, fraud or other circumstance leading up to the execution of in this case because “[t]here was no mistake (mutual or unilateral), Nadeau argues that the elements necessary for rescission are not present

discretion standard. Mooney, 149 N.H. at 357. exercise of discretion by rescinding the separation agreement. “Rescission is the trial court’s order of rescission under our unsustainable exercise of Derouin v. Granite State Realty, Inc., 123 N.H. 145, 147-48 (1983). We review

determination whether the parties can be restored to the status quo is one that circumstances, it appears right and just to the parties to do so. Id. “The Id. Consequently, the trial court should grant it only when, in all the that restores the injured party to the position occupied before the transaction. (2003) (quotation omitted). Equitable rescission, with restitution, is a remedy

Mooney v. Nationwide Mut. Ins. Co., 149 N.H. 355, 357

Nadeau next asserts that the trial court committed an unsustainable

II. Rescission

Sup. Ct. R. 13(2). ruling. See Tiberghein v. B.R. Jones Roofing Co., 151 N.H. 391, 395 (200 p. 4 4); thereon. Absent such materials, we lack a record sufficient to review this 4

proceedings. error must seriously affect the fairness, integrity or public reputation of judicial error must be plain; (3) the error must affect substantial rights; and ( p. 4 4) the

justice would otherwise result.

was not raised below and, thus, was not preserved for appeal. affected substantial rights. See State v. Emery, 152 N.H. 783, 787 (2005). contained in his original employment contract. EDFP argues that this issue that the error was plain, the burden is on the plaintiff to prove that the error

Id. at 737. Even assuming that there was error in this case, and

(2005). For us to find error under the rule: (1) there must be an error; (2) the

sparingly, its use limited to those circumstances in which a miscarriage of the attention of the trial court. Id. Nonetheless, the rule should be used Our plain error rule, however, allows us to consider errors not brought to

contained within the rescinded separation agreement, when in fact it was erred by ruling that the indemnification provision was invalid because it was of his original employment contract. He argues that the trial court plainly was entitled to the benefit of the indemnification and hold harmless provisions Nadeau next contends that the trial court erred by failing to rule that he precisely what the trial court’s remedy accomplished.” rescinded, it is as if the contract never existed in the first place. This is III. Indemnification

Jack, 153 N.H. 351, 356 (2006). warrant appellate review, we decline to address it. In the Matter of Bazemore & for this assertion. Because he has not developed this argument sufficiently to the decisions made in the political arena,” but offers no citations or support restitution is a remedy that is focused upon restoring Nadeau also vaguely asserts that trial courts should not “second guess Nadeau misapprehends the law of rescission. Equitable rescission and omitted).

restitution of the severance payment to the EDFP. “When a contract is the fraudulent agreement. The status quo was equitably achieved by ordering actions that Nadeau might have taken had he been unsuccessful in creating pre-transaction time frame is what the court scrutinizes, not hypothetical injury status. Id. In this case, EDFP is the injured party, not Nadeau. The position occupied before the transaction; equity returns the parties to their pre-

would have triggered the higher severance pay had he stayed on the job. he would have received anyway, as the EDFP did ultimately dissolve and this asserts that enforcement of the trial court’s order deprives him of the severance he would have occupied had the separation agreement not been executed. He Nadeau next argues that the rescission did not return him to the position the president of the Professional Firefighters of New Hampshire. p. 5 call from a Derry firefighter, who testified that he had learned of the news from meeting, Nadeau was informed of the decision and he fielded a congratulatory

and to continue in the process of hiring.” On the morning of the November 23

with the Fire Marshall and made a decision to offer the position to Mr. Nadeau the interviews on November 22, 2004, “counsel deliberated, had discussion connected with the hiring in Massachusetts testified in his deposition that after

DUGGAN, GALWAY and HICKS, JJ., concurred.

the trial court did not believe Nadeau, finding his credibility “suspect.” fact is not required to believe even uncontroverted testimony. Id. In this case, party. Brent v. Paquette, 132 N.H. 415, 418 (1989). Additionally, the trier of finder may accept or reject, in whole or in part, the testimony of any witness or had secured the Massachusetts job as of November 23, 2004. An official approved, the only testimony on this point was from Nadeau himself. The fact Massachusetts job had the more generous severance package not been As for Nadeau’s argument that he would not have taken the

finding. 2004 meeting. He asserts that there is insufficient evidence to support this Massachusetts job opportunity was all but assured before the November 23,

We find the evidence sufficient to support the trial court’s finding that Nadeau unsupported by the evidence. Osman v. Gagnon, 152 N.H. 359, 361 (2005). We will affirm the trial court’s factual findings unless they are

Nadeau next argues that the trial court erred when it found that his

IV. Sufficiency of the Evidence

Emery, 152 N.H. at 787. 742, 750 (2006). Nor has Nadeau met his burden of proving plain error. See raised in the forum of trial.” Miller v. Blackden, 154 N.H. ___, ___, 913 A.2d preserved for our review. “[P]arties may not have judicial review of matters not After reviewing the record, we agree with EDFP and find this issue is not