2011-288, Lynne DiGaetano & a . v. John M. DiGaetano

The plaintiffs, Lynne DiGaetano, Michael John DiGaetano,

S. Willey ___________________________ on the brief, and Mr. Grill orally), for the defendant. Devine, Millimet & Branch, P.A. and Leigh THE SUPREME COURT OF NEW HAMPSHIRE

brief and orally), for the plaintiffs. Griffin Law LLC on the 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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as to interpret the trust. After a six-day bench trial, the Probate Court (Hurd

p. 2 defendant petitioned the Rockingham County Probate Court in February 2008

Seeking to establish himself as the rightful owner of the proceeds, the

proceeds of $263,112.92. defendant sold his parents’ former home held by the family trust, for net

defendant filed a motion in

beneficiary. Domenica died in June 2006. Following his mother’s death, the

court lacked jurisdiction. After the court denied his motion to strike, the

trust in May 2003, establishing the defendant as the sole trustee and Michael DiGaetano died in November 2002. Domenica then ruling, RSA 547:11-d (2007) (amended in 2011) provided, in relevant part: amended the

moved to strike the plaintiffs’ notice of appeal, contending that the superior

motion in 2

exclusive jurisdiction of the probate court. At the time of the superior court’s Donor.”

breached that contract when she amended the original trust. The defendant trust constituted a contractual “common plan,” and whether Domenica they were entitled to a jury trial on the issues of whether the original family

the case. The plaintiffs now appeal the superior court’s order granting the The plaintiffs then appealed to the superior court and sought a de

superior court lacked jurisdiction over this case because it was within the an instrument in writing executed by the said Donors jointly or by a surviving We first address the defendant’s contention in his cross-appeal that the that the trust “may be revoked in its entirety or amended from time to time by plaintiffs, as beneficiaries of the trust. Paragraph eleven of this trust provided II

trial is guaranteed by the constitution or by statute. The plaintiffs argue that motion to strike the plaintiffs’ appeal.

limine, and the defendant cross-appeals the court’s order denying his

their burden of proof in the jury trial without the excluded evidence, dismissed court granted the motion, and, concluding that the plaintiffs could not sustain

Salem, and named their grandchildren and great-grandchildren, including the

for appeal from the probate court to the superior court where the right to a jury jury trial pursuant to RSA 547:11-d (2007), a since-amended statute providing

enforceable, and ruled in favor of the defendant. concluded that the trust, as amended by Domenica in May 2003, is valid and

7, 1996, the couple established a family trust holding title to their home in were a married couple with two sons, one of whom is the defendant. On June The relevant facts are not in dispute. Domenica and Michael DiGaetano

p. 3 trial under RSA 547:11-d is a question of law, which we review de Whether the plaintiffs have a constitutional or statutory right to a jury

2011). We determine the probate court’s jurisdiction by examining “the nature brought by a third party against an estate, [or] trust . . . .” RSA 547:3- l (Supp. ancillary matters, including claims “for the recovery of money or property . . . termination of . . . trusts . . . .” The probate court also has jurisdiction over

jurisdiction over “the interpretation, construction, modification, and Under RSA 547:3, I(c) (Supp. 2011), the probate court has exclusive

of common law and statute.” probate court,” and that the plaintiffs were entitled to a jury trial “as a matter d allows a party to request by appeal a trial by jury after the decision of the

legislature sees fit.”). Scott & W.F. Fratcher, Scott on Trusts were first enforced, within the peculiar province of courts of equity.” III A.W. relevant inquiries into the nature of a claim include: (1) whether the action “not constitutionally guaranteed, nor did it exist at common law”); see, 159 N.H. 344, 347 (2009). The The superior court agreed, and ruled that “[t]he plain language of RSA 547:11provide a right to jury trial in matters of equity. See

Bogert & G.T. Bogert, The Law of Trusts and Trustees

in probate matters is purely statutory and may be granted or limited as the We note, as an initial matter, that “[t]rusts are, and have been since they re Estate of Heald, 147 N.H. 280, 282 (2001) (“The right to request a jury trial

N.H. 577, 578-79 (1985) (noting that the right to jury trial in probate matters is plan” and whether Domenica breached that contract by amending the trust. Petition of Atkins, 126 statute considered as a whole. Id New Hampshire law is consistent with this general principle, and does not whether Domenica and Michael DiGaetano entered into a contractual “common the enforcement of trusts or liability of trustees are generally based in equity.”). The plaintiffs argued that they were entitled to a jury trial on the issues of 1995); see also 76 Am. Jur. 2d Trusts § 594, at 624 (2005) (“[A]ctions involving

words, “equity has original and complete jurisdiction over trusts[.]” G.G.

words used. Id. statute, and, where possible, we ascribe the plain and ordinary meaning to the

the final arbiters of the legislature’s intent as expressed in the words of the Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 385 (2011). We are

appeal therefrom to the superior court. novo. New the time judgment by the probate court is declared, constitution or granted by statute, a person may, at

In cases where a right to jury trial is guaranteed by the to a contract has no remedy for breach of contract. Arlington Trust Co. v.

p. 4 party beneficiary doctrine is an exception to the general rule that a non-party

any alleged contract between Domenica and Michael DiGaetano. The third Nor are the plaintiffs entitled to a jury trial as third party beneficiaries to

See

the probate court. within the exclusive jurisdiction of the probate court under RSA 547:3, I(c). nature, further indicating that this case is within the exclusive jurisdiction of interpretation of the meaning and validity of the trust itself, a task squarely surviving spouse from amending the trust’s terms. This issue involves the

rely on the existence of such a contract as evidence to reform enforce the contract. As discussed above, the plaintiffs are instead seeking to

reality the reformation of the original family trust, which is wholly equitable in his parents’ former home. The relief sought by the plaintiffs, 4 therefore, is in reformed in light of evidence of a separate oral contract preventing either trust in their favor over the proceeds received by the defendant from the sale of defendant as the sole beneficiary unenforceable, and to impose a constructive

contract; nor are they suing her, her estate, or anyone else for that matter, to

the parties intended them to have that right.” Brooks v. Trustees of Dartmouth

expressly allowed either spouse to amend the trust at any time, should be relief. The crux of the dispute here is whether the original family trust, which the original family trust, to declare the amended trust designating the status and intended to confer upon him a right to sue the promisor” the original DiGaetano family trust, and the plaintiffs seek equitable, not legal, (“the contract must show that the parties considered the third party’s legal and impose a constructive trust in their favor. See Brooks, 161 N.H. at 698

§ 425 (2004). The plaintiffs, however, are not suing Domenica for breach of College, 161 N.H. 685, 697 (2011). See generally 17A Am. Jur. 2d Contracts

nonparties to a contract, “are nevertheless allowed to sue to enforce it because Estate of Wood, 123 N.H. 765, 767 (1983). Third party beneficiaries, as

contract; instead, they are effectively seeking to strike paragraph eleven from nature of the plaintiffs’ claim involves the interpretation and construction of addition, the plaintiffs do not seek damages, the legal remedy for breach of concerning . . . the construction of a will, or claims against the estate.”). In

within the equitable jurisdiction of the Probate Court.” We disagree. The DiGaetano] . . . is a question of contract formation for a jury, and does not fall § 95, at 229-30 (2008) (“A right to a jury trial is inapplicable to proceedings issue of whether an agreement existed between [Domenica and Michael In re Pack Monadnock, 147 N.H. 419, 425 (2002); cf. 50A C.J.S. Juries The plaintiffs argue that they are entitled to a jury trial because “[t]he

for the probate judge is fully competent to serve as a finder of facts.” Id. “immaterial whether the action may present factual as well as legal questions, or legal. Cf. Staples v. King, 433 A.2d 407, 412 (Me. 1981). We also find it relates to an estate, will, or trust; and (2) whether the relief sought is equitable p. 5 5

order granting the defendant’s motion in

the superior court, we need not address their appeal of the superior court’s

Because we conclude that the plaintiffs were not entitled to a jury trial in

dismiss the plaintiffs’ appeal. motion to strike the plaintiffs’ notice of appeal, and remand with instructions to DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred. Accordingly, we reverse the superior court’s order denying the defendant’s provide them a right to a jury trial under the circumstances of this case. Reversed and remanded.

promised performance.”), the third party beneficiary doctrine still does not manifests the parties’ intention to confer upon a third party the benefit of the

themselves as having more than just a mere expectancy of some benefit (quotations omitted; emphasis added)). Even if the plaintiffs could establish