2006-720, SINGER ASSET FINANCE CO. v. DEBORA WYNER

Sheehan Phinney Bass + Green, P.A.

No. 2006-720

Rockingham

(Singer), appeals orders of the Superior Court (Morrill BRODERICK, C.J. The petitioner, Singer Asset Finance Co., LLC

interference with contractual relations and unjust enrichment. We affirm. Law Offices of Edward W. Richards & Associates, P.C. Wyner cross-appeals the trial court’s dismissal of her claims for tortious appeals the amount of damages awarded on its claim for unjust enrichment. declaratory relief and claims for conversion and breach of contract. Singer also judgment in favor of the respondent, Debora Wyner, on its request for

for the respondent. (Edward W. Richards and Tanya Pardo on the brief, and Mr. Richards orally), THE SUPREME COURT OF NEW HAMPSHIRE, of Nashua

LaMontagne on the brief and orally), for the petitioner.

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 2004, her payments were deposited into this drop account, and Singer made she directed her payments from TOLIC. From December 1996 through May In late 1996, Wyner opened a deposit account in New York, into which

rules.” substantive laws of the State of New York without regard to its choice of law Documents shall be governed, construed and enforced in accordance with the clause stating: “This Agreement, the Related Documents and the Ancillary respect to the periodic payments. Each purchase agreement contained a rights, claims and interests to any benefits or proceeds that she possessed with Claim.” Singer contends that under these agreements, Wyner released any executed a purchase agreement and an “Absolute Assignment and Waiver of payments totaling $171,077. At the time of each of these transactions, Wyner $139,375. In 1997, Singer paid Wyner $23,490 for a second block of periodic ultimately agreed to pay Wyner $66,885 for a block of payments totaling to “keep [her] lifestyle the same” as it had been prior to her injury. Singer wanted to sell some payments to be able to purchase “a place of [her] own” and to negotiate a sale of some of her periodic payments for cash. At the time, she In 1996, Wyner contacted an agent of Singer in the State of Washington

Life Insurance Company (TOLIC) to fund the payments to Wyner. TASC, in turn, purchased an annuity contract from Transamerica Occidental periodic payments to Transamerica Annuity Service Corporation (TASC). The settling insurer in Wyner’s tort suit assigned its obligation to make

interpreted in accordance with the law of the State of New Hampshire.” The settlement agreement also provides that it “shall be construed and

insurer].

benefit of the . . . successors and assigns of [both Wyner and the

[This agreement] shall be binding upon and inure to the

. . . .

[the underlying tort suit defendant’s insurer]. encumber said payments, and any attempt to do so shall not bind

[Wyner] nor any payee may not assign, anticipate, pledge or

following provisions: 1995 and ending in May 2019. The settlement agreement contains the the agreement, she was entitled to a series of payments commencing in May malpractice claim by entering into a structured settlement agreement. Under The following facts are not disputed. In 1995, Wyner resolved a medical

p. 3 contractual relations and unjust enrichment claims were time-barred. We arguing that the trial court erred by ruling that her tortious interference with assignment language in her settlement agreement. She also cross-appeals, Hampshire law should guide our interpretation and application of the antienrichment claim. We note that in her brief, Wyner suggests that New (3) awarding insufficient damages under New Hampshire law on its unjust from asserting, the anti-assignment language in her settlement agreement; and (2) ruling that under New York law, Wyner did not waive, and was not estopped agreement was enforceable, rendering the periodic payments non-assignable; under New York law, the anti-assignment language in Wyner’s settlement On appeal, Singer argues that the superior court erred by: (1) ruling that

$8,105.09, plus statutory interest from the date of its petition. entered judgment for Singer on its unjust enrichment claim in the amount of unjust enrichment, declined to award attorney’s fees to either party, and barred Wyner’s claims for tortious interference with contractual relations and law. Finally, in September, the court ruled that the statute of limitations common law unjust enrichment claim would be resolved under New Hampshire The superior court issued a third order in August ruling that Singer’s

Relying upon Singer Asset Finance Co. v. Bachus Wyner’s assignment of her periodic payments to Singer was not enforceable. purchase agreements with Wyner. In May, the superior court ruled that Singer with respect to Wyner’s Washington-based consumer protection claim. New York law to Singer’s claims arising from any alleged violations of its claim for unjust enrichment; and (3) granted summary judgment in favor of motions. First, in March 2006, the superior court ruled that it would apply purchase agreements; (2) granted summary judgment in favor of Singer on its claims, and the superior court issued a series of orders addressing those summary judgment in favor of Wyner with respect to any alleged breach of the The parties filed cross-motions for summary judgment on all of their clause in her settlement agreement. The trial court therefore: (1) granted the right to assign,” and that Wyner could not waive the anti-assignment assignable periodic payment settlement agreement lacks the power as well as 2002), the trial court ruled that in New York, “the recipient of the non-

relations, and a violation of the Washington consumer protection act. counterclaims for unjust enrichment, tortious interference with contractual contract, conversion, and unjust enrichment. In response, Wyner filed against Wyner, TASC and TOLIC, for, inter alia, declaratory relief, breach of checks to her home address in New Hampshire. Singer subsequently filed suit 2004, when Wyner contacted TOLIC and redirected the periodic payment were effectively going to Singer. This arrangement remained in place until May regular withdrawals from it. TOLIC was never made aware that its payments during trial court proceedings to preserve an issue for appellate review. See p. 4 Generally, a party must make a specific and contemporaneous objection

substantial part. affirmatively citing New York case law, which the trial court granted in security their structured settlements were designed to provide.” Singer Asset pleading. Indeed, she filed a revised motion for summary judgment discounts, depriving victims and their families of the long-term financial object to the trial court’s application of New York law in any subsequent induce settlement recipients to cash out future payments . . . at substantial New York law” in its first summary judgment order. Moreover, Wyner failed to number of factoring companies using . . . the allure of quick and easy cash[ ] to and remarked that “[t]he respondent does not necessarily object to applying enacted a Structured Settlement Protection Act “in response to the growing including her Counterclaim . . . .” The trial court relied upon this statement, With respect to Singer’s contract claims, we note that in 2002, New York so rules, the [respondent] should be awarded time to revise her pleadings, the allegation that New York law applies [to this matter], however, if the Court judgment, Wyner stated: “The [respondent] does not necessarily disagree with III We observe that in her objection to Singer’s motion for summary contract claims under New York law. and Wyner was proper. Thus, we will evaluate the substance of Singer’s when evaluating the enforceability of the purchase agreements between Singer assume without deciding that the superior court’s application of New York law review any issue that was not raised below,” Milliken, 154 N.H. at 665, we now raised in the forum of trial.” Red Oak, 151 N.H. at 250. Since “we will not long-standing rule that parties may not have judicial review of matters not Milliken v. Dartmouth-Hitchcock Clinic, 154 N.H. 662, 665 (2006). “It is a

248, 250 (2004). our review. We agree. See generally Bean v. Red Oak Prop. Mgmt., 151 N.H. this argument before the trial court, and thereby failed to preserve the issue for that document. Singer, on the other hand, maintains that Wyner failed to raise utilize New Hampshire law, in light of the express choice of law provision in effect of the anti-assignment language in her settlement agreement should of law issues raised by Wyner. She argues on appeal that our analysis of the MacDonald, 154 N.H. 768, 770 (2007). We first turn to the preliminary choice trial court’s application of the law to the facts de novo.” St. Onge v. In an appeal from an order granting summary judgment, “[w]e review the

non-assignment clause to also contain talismanic language or magic words stated intent to render Bachus powerless to assign, there was no need for the Bachus (discussing difference between “right” and “power” to assign). “With a clearly 620; see also Rumbin v. Utica Mut. Ins. Co., 7 p. 5 57 A.2d 526, 531 (Conn. 2000) assignment of his rights under that agreement was effectively barred.” Id. at rights under the structured settlement agreement, and thus any attempted and unequivocally surrendered not only the right but the power to assign his language, the New York appellate court found that “Bachus expressly, clearly, same, or any part thereof.” Id. (quotations omitted). Based upon this assignment,” and that Bachus lacked “the power to sell, mortgage or encumber Macklowe “[were] not subject in any manner to anticipation, alienation, sale, transfer, [or] to a claim for damages against the assignor for violation of the covenant.” case, the settlement agreement stated that the periodic payments due Bachus assignments, an assignment made in violation of such covenant gives rise only similar to those currently before us. See Bachus, 741 N.Y.S.2d at 619. In that , the case principally relied upon by the trial court, involved facts

interest.” Belge, 334 N.Y.S.2d at 188. assignor had the basic, fundamental right to transfer his valuable contract assignor committing breach). “The decisive consideration is . . . whether the such assignments.” Macklowe v. 42nd St. Dev. Corp. did not void subsequent assignment, but created right to recover damages from contains clear, definite and appropriate language declaring the invalidity of (clause stating contract “shall not be assigned . . . without . . . written consent” contravention of a prohibition clause in a contract are void if the contract Casualty & Surety Company In New York, “it has been consistently held that assignments made in, 334 N.Y.S.2d 18 p. 5 5, 187-88 (App. Div. 1972) , 566 N.Y.S.2d at 607 (quotation omitted); see, e.g., Belge v. Aetna

the language employed constitutes merely a personal covenant against assignment by you will be void” enforced literally). “On the other hand[,] where 622 N.Y.S.2d 1 p. 5 54, 155 (App. Div. 1995) (anti-assignment clause stating “[a]ny 07 (App. Div. 1991); see, e.g., Spinex Labs. v. Empire Blue Cross & Blue Shield,

with Singer. Melvin, 822 N.Y.S.2d at 70. contract law as it existed when Wyner entered into her purchase agreements consideration of the instant matter, however, is constrained by New York (trial court order denying petition to sell structured settlement payments). Our New York, LLC, No. 2007-1721, 2007 WL 249223 p. 5 5, at *3-4 (N.Y. Sup. Ct. 2007) advanced are fair and reasonable.” Melvin, 822 N.Y.S.2d at 70; see, e.g., In re that the discount rate, fees and expenses used to determine the net amount express findings . . . that the transfer is in the best interest of the payee and New York “unless approved by a court of competent jurisdiction based upon result, transfers such as the ones at issue in this case are now prohibited in omitted); see N.Y. Gen. Oblig. Law § 5-1706 (McKinney Supp. 2007). As a Fin. Co., LLC v. Melvin, 822 N.Y.S.2d 68, 70 (App. Div. 2006) (quotation p. 6 Sillman v. Twentieth Century-Fox Film Corp. In New York, “[a] prohibition against assignment . . . may be waived.”

Thus, the protection of the clause was not Wyner’s to waive. See explicitly inured to the benefit of the settling insurer and, by extension, TOLIC.

471 N.Y.S.2d 457, 461 (Sup. Ct. 1983). Waiver may be achieved by a course of see also Belge, 334 N.Y.S.2d at 189; University Mews Associates v. Jeanmarie,

recognize that the anti-assignment clause in Wyner’s settlement agreement A.2d at 1322. agreements for approximately eight years. We disagree. Singer fails to settlement agreement’s anti-assignment clause. See voluntarily entered into purchase agreements with Singer, and honored those Garden State Bldgs., 702 therefore, whether TOLIC, as opposed to Wyner, waived enforcement of the benefit of the obligor . . . .”). The actual question that we must address is, under the contract, unless a different intention is manifested . . . is for the Contracts § 322(2)(c) (1981) (“A contract term prohibiting assignment of rights cert. denied, 707 A.2d 153 (N.J. 1998); see also Restatement (Second) of Bldgs. v. First Fidel., 702 A.2d 1315, 1322-23 (N.J. Super. Ct. App. Div. 1997),

invoke the anti-assignment clause as a defense to its claims because she Notwithstanding this, Singer argues that Wyner waived her ability to

Bachus, 741 N.Y.S.2d at 620; Belge, 334 N.Y.S.2d at 188. periodic payments. This renders her purchase agreements with Singer void. contains a clear expression of intent to eliminate her power to assign the conclude that the anti-assignment clause in Wyner’s settlement agreement N.E.2d 891, 893 (N.Y. 1952), and Sullivan, 465 N.Y.S.2d at 238). We therefore 181 F.3d 435, 442 (3d Cir. 1999) (citing Allhusen v. Caristo Constr. Corp., 103 eliminates the power to assign. See Wyner’s settlement agreement has the same effect as that in Bachus Bel-Ray Co., Inc. v. Chemrite (PTY) Ltd., analyzing New York law have found that this kind of clause effectively We find that the language employed in the anti-assignment clause of International Fidelity Ins. Co., 465 N.Y.S.2d 235, 238 (App. Div. 1983). Courts required to recognize or accept any assignment made by Wyner. Cf. Sullivan v. 334 N.Y.S.2d at 188. Furthermore, the clause provides that TOLIC shall not be achieve an enforceable assignment. Cf. Macklowe, 566 N.Y.S.2d at 606; Belge, does not contemplate the possibility of assignment, or indicate a means to conclusion is bolstered by the fact that the anti-assignment clause in question statement can only be seen as her surrender of the power to assign. This assign” her periodic payments from TOLIC. For all practical purposes, such a terms, Wyner expressly, clearly, and unequivocally agreed that she “may not

Bachus, p. 7 741 N.Y.S.2d at 620 (brackets and quotation omitted). describing the effect of any attempt by the payee to make an assignment.” 7

damages it was awarded. “The correct measure of restitution for unjust 122 N.H. 120, 12 p. 7 7 (1982). Singer, however, challenges the amount of the Wyner correctly notes that this issue was squarely resolved by the Bachus been unjustly enriched by its cash advances. Petrie-Clemons v. Butterfield Code nullifies the anti-assignment clause in Wyner’s settlement agreement., properly entered summary judgment for Singer on its claim that Wyner had We further disagree with Singer that the New York Uniform Commercial finding that Wyner could not waive the anti-assignment clause, the trial court In the absence of a valid and enforceable contract, and after correctly

620-21. Singer. Cf Singer and Wyner, even if that transaction were valid. Bachus, p. 7 741 N.Y.S.2d at court, which found that the UCC would not apply to the transaction between TOLIC was ever aware that Wyner’s periodic payments had been assigned to In this case, the summary judgment record is devoid of evidence that

not rebut this conclusion. Chapin, p. 7 744 N.Y.S.2d at 182-83. been named a defendant in the superior court proceedings on this matter, does and “inaction” during the course of the instant litigation, despite its having we will affirm the trial court’s decision.” (quotation omitted)). TOLIC’s “silence” material fact, and if the moving party is entitled to judgment as a matter of law, 494 (2007) (“If our review of the evidence does not reveal any genuine issue of purchase agreements. See Anderson v. Motorsports Holdings, 155 N.H. 491, granted judgment in favor of Wyner on Singer’s claims stemming from the inference of waiver by TOLIC, and the superior court, therefore, properly 1996. In any event, the summary judgment record in no way supports an circumvent an initial invocation of the anti-assignment clause by TOLIC in Wyner may have been required to open the New York drop account to TOLIC’s part signifying acceptance of Wyner’s transfer. Indeed, it appears that Furthermore, the record reveals no affirmative act or manifestation of intent on own name, into which the periodic payments were thereafter to be deposited. inform TOLIC only that she had opened a New York bank account bearing her

. Belge, 334 N.Y.S.2d at 188-89. Instead, Singer required Wyner to

183. entity “has accepted the benefits of an agreement,” Chapin, p. 7 744 N.Y.S.2d at at 391 (quotation omitted), and will lead to estoppel only when an individual or words, “the intentional relinquishment of a known right,” Sillman, 144 N.E.2d not to take advantage of them.” Id. (quotation omitted). Waiver is, in other party to be estopped be aware of certain facts and, being aware of them, elect 183 (App. Div. 2002) (quotation omitted). Indeed, “waiver requires that the inferred from mere silence or inaction,” Chapin v. Chapin, 744 N.Y.S.2d 181, business dealings, University Mews, 471 N.Y.S.2d at 461, but “will not be p. 8 Kenerson v. Morgan Guaranty Trust Co. can only accrue from the time that suit is filed or when a demand is made.” “[T]he customary rule in New Hampshire is that pre-judgment interest

at 529 (pre-filing interest in order when lost interest earnings are part of ___ (decided October 31, 2007); Ward, 129 N.H. at 12; Kenerson, 889 F. Supp. Wyner equitably owed Singer. Cf. In re Guardianship of Dorson, 156 N.H. ___, unclear that the interest awarded here could be considered part of the debt interest were paid in full.” remains an open question as a matter of law. Furthermore, factually, it is monthly, at prevailing rates on the principal of the loan until the principal and 12 (1986), the propriety of adding pre-writ or pre-petition interest to a claim incurred costs, fees and she would have had to pay interest, compounded 889 F. Supp. at 529, or misappropriation, see procure a loan [for $90,375] from a lending institution . . . she would have In re Estate of Ward, 129 N.H. 4, that in a case of unjust enrichment, as opposed to conversion, see was effectively a “loan.” Singer reasons: “If Wyner had . . . attempted to Kenerson, Practice, Civil Practice and Procedure on the $90,375 it advanced Wyner. In its view, the money advanced to Wyner § 52.01, at 388 (2d ed. 1998). We note (quotation omitted); see Singer now argues that it should have been awarded compound interest also RSA 524:1-b; 5 R. Wiebusch, New Hampshire , 889 F. Supp. 523, 528 (D.N.H. 1995)

Hampshire’s statutory interest rates. See calculations added simple interest to the declining balance owed Singer at New reimbursed for its advance by the periodic payments from TOLIC. Her advanced by Singer through July 2003, the point at which Singer was fully the date of judgment. suggested that $19,195.09 in interest had accrued on the $90,375 she was See RSA 524:1-b (2007). statutory interest to this figure from the date Singer filed its petition through considered “more fair and accurate” than those submitted by Singer. Wyner arriving at a suggested award of $8,105.09. The trial court then added trial court adopted damage calculations submitted by Wyner, which it above the $90,375 advanced – from the $19,195.09 in accrued interest, When determining that Singer was entitled to an award of $8,105.09, the therefore subtracted $11,090 – the surplus transferred to Singer over and account to her home, Singer had received $101,465 from TOLIC. Wyner 2004, when Wyner redirected the periodic payments from the New York drop

Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 46 (2007). award of damages for an unsustainable exercise of discretion. Blagbrough 590 (1995) (quotation omitted). We, therefore, review a trial court’s equitable circumstances and exigencies of the case.” Decker v. Decker, 139 N.H. 588, sound discretion of the trial court to be exercised according to the Id. “The propriety of affording equitable relief in a particular case rests in the enrichment is the value of the benefit received by the unjustly enriched party.” the limitations period. See p. 9 TOLIC as calling for application of the “continuing wrong” doctrine to extend essentially committed an actionable tort each time it received a payment from Reading Wyner’s brief broadly, we interpret her argument that Singer

because she began to receive less than the full value of her settlement. payment from TOLIC in 1996. At that point, she had been harmed financially based upon the continuance of that tort within that period.” Id. (quotation period prior to the filing of an action, an action will not be barred if it can be although the initial tortious act may have occurred longer than the statutory Under the “continuing wrong” doctrine, “[w]hen a tort is of a continuing nature,

interference – and her claim thus arose – when Singer received its first (emphases omitted). Here, Wyner was “damaged” by any allegedly tortious interference.” Hughes v. N.H. Div. of Aeronautics, 152 N.H. 30, 40-41 (2005) interfered with this relationship; and (4) the plaintiff was damaged by such judgments. See manner contemplated by New Hampshire’s statutes governing interest on knew of this relationship; (3) the defendant intentionally and improperly discretion in the trial court’s decision to award pre-petition interest in the same the plaintiff had an economic relationship with a third party; (2) the defendant Operating upon this supposition, we see no unsustainable exercise of intentional interference with contractual relations, a plaintiff must show: (1) the first purchase agreement with Singer in 1996. “To establish liability for find that her cause of action accrued almost immediately after she entered into respect to Wyner’s claim for tortious interference with contractual relations, we a claim are present.” Therrien v. Sullivan, 153 N.H. 211, 213 (2006). With the running of the three-year statute, once all the elements necessary for such actions. See RSA 508:4 (1997). “A cause of action arises, thereby triggering unjust enrichment based upon the three-year statute of limitations on personal dismissing her claims for tortious interference with contractual relations and We next turn to Wyner’s argument that the trial court erred by

in this case. We, therefore, affirm the trial court’s award. authority for the proposition that an award of compound interest was required Wyner. Petrie-Clemons, 122 N.H. at 127. Singer cites, and we find, no advance compensated the company in proportion to the benefit received by to having invested it), we conclude that an award of simple interest on Singer’s indicates that Wyner promptly spent the money she was advanced (as opposed

RSA 336:1; RSA 524:1-b. After reviewing the record, which

of interest on its advance of $90,375. Singer, we will assume, without deciding, that Singer was entitled to some form since Wyner has not appealed the trial court’s award of pre-petition interest to underlying debt; pre-filing interest cannot simply be added to claim). However, p. 10 Affirmed

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

trial court’s failure to make such an award. initially sought an award of costs and attorney’s fees, she did not appeal the moot. See legal fees have not unjustly benefited Singer. We note that while Wyner the statute of limitations vis-à-vis her unjust enrichment claim; her claim is however, could not be recovered through an unjust enrichment action; her Finally, we find it unnecessary to address Wyner’s arguments regarding dealings with Singer have placed upon her. Any expenses she has incurred, 10 discusses at length the inequitable financial burden this litigation and her We observe that while making her unjust enrichment arguments, Wyner

rule” to toll the statute of limitations. See We are also unpersuaded by Wyner’s attempt to invoke the “discovery thereby resolved her unjust enrichment claim despite finding it time-barred. held prior to Wyner’s legally ineffective assignment (albeit with interest), it purchase agreements, and restored the parties to the economic positions they purchase agreements been enforced. Since the trial court invalidated the claim was predicated upon the windfall Singer would have received had her

In re Guardianship of R.A., 155 N.H. 98, 100-01 (2007). Wyner’s

interference claim. trial court correctly declined to toll the limitations period on her tortious payments assigned, not accounting for inflation. Accordingly, we find that the had paid Wyner just 29 percent of the total future value of the periodic which she now wishes to sue by 1997. At that time, it was clear that Singer diligence,” id. at 177 (quotation omitted), should have discovered the injury for with Singer that, as a matter of law, Wyner, “in the exercise of reasonable predatory acquisition practices.” Even if this were proven at trial, we agree abuse of structured settlement annuity holders . . . by [companies employing] inflicted by Singer until watching a television documentary in 2004 on “the N.H. 168, 176-77 (1997). She suggests that she did not discover the “injury”

“continuing wrong” doctrine in this case. continual ill effects from an original violation.”). Thus, we decline to apply the 1981) (“A continuing violation is occasioned by continual unlawful acts, not by *3 (Idaho Ct. App. 2007); see also Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. the accrual date.” McCabe v. Craven, ___ P.3d ___, ___, 2007 WL 1229095, at completed, and the continuing accrual of injury or damages does not extend held that “[a] claim based on a single tort ordinarily accrues when the tort is interference was of a continuing nature. We agree with those courts that have respective purchase agreements. Only the damage inflicted by Singer’s alleged occurred at two discrete points in time, and concluded once Wyner signed her omitted). In this case, however, any tortious interference on Singer’s part