Clearview Software International, Inc. v. Paul R. Kfoury, Sr., Esq.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0682, Clearview Software International,
Inc. v. Paul R. Kfoury, Sr., Esq., the court on August 18, 2016,
issued the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
plaintiff, Clearview Software International, Inc., appeals an order of the
Superior Court (Nicolosi, J.) granting summary judgment to the defendant,
Paul R. Kfoury, Sr., Esq., on the plaintiff’s action alleging that the defendant
had committed legal malpractice between 2006 and 2009. We affirm.

The relevant facts follow. The plaintiff brought its legal malpractice claim
against the defendant in January 2015. The plaintiff’s complaint alleged that
the defendant had negligently drafted a settlement agreement that barred the
plaintiff from asserting a cause of action against another party. When the
defendant represented the plaintiff, he was a partner and shareholder at the
law firm of Wiggin & Nourie, P.A. (Wiggin & Nourie). The defendant ceased to
be affiliated with Wiggin & Nourie in April 2010.

On September 10, 2010, the plaintiff’s counsel sent a letter addressed to
the defendant at Wiggin & Nourie, notifying him of the plaintiff’s potential
negligence claim against him. On August 1, 2013, the plaintiff entered into a
tolling agreement with Wiggin & Nourie, tolling for one year the statute of
limitations for any claims that the plaintiff had against Wiggin & Nourie. That
agreement provided, in pertinent part, as follows: “This Tolling Agreement . . .
is made . . . by and between Clearview Software International, Inc.
(hereinafter referred to as the ‘Claimant’) and Wiggin & Nourie, PA (hereinafter
referred to as the ‘Defendant’). The Claimant and the Defendant are collectively
referred to as the ‘Parties.’” The tolling agreement was signed by L. Jonathan
Ross on behalf of Wiggin & Nourie as its “President.”

On June 25, 2014, the plaintiff and Wiggin & Nourie agreed to extend the
tolling agreement until February 1, 2016. Ross signed the extension on Wiggin
& Nourie’s behalf as its “President.”

In May 2015, the defendant filed a motion for summary judgment
alleging that the plaintiff’s January 2015 action against him was time-barred
because it had been commenced more than four years after the plaintiff’s cause
of action accrued. The defendant asserted that the tolling agreement “was
between the plaintiff and Wiggin & Nourie, P.A.” and was not between the
plaintiff and the law firm’s shareholders. The defendant further asserted that
when the parties entered into the tolling agreement, he was no longer affiliated
with Wiggin & Nourie.

The plaintiff filed an objection to the defendant’s summary judgment
motion, which was not accompanied by an affidavit based upon personal
knowledge or an affidavit “showing specifically and clearly reasonable grounds
for believing that contradictory evidence can be presented at a trial but cannot
be furnished by affidavits.” RSA 491:8-a, II (2010). In addition to the tolling
agreement and extension thereto, the plaintiff appended to his objection:
numerous e-mail messages; an insurance policy; and a one-page excerpt from
the defendant’s deposition in which he testified that “[Russell Hilliard] is
representing Wiggin & Nourie . . . which includes me.” See RSA 491:8-a, III
(2010). The defendant filed a reply to the plaintiff’s objection in which the
defendant argued that the objection did not comply with RSA 491:8-a (2010)
because it “is not supported by any contradictory affidavit.” The plaintiff filed a
response to the defendant’s reply, but the response was not accompanied by an
affidavit.

In its September 2015 order granting summary judgment to the
defendant, the trial court did not address the defendant’s assertion that the
plaintiff’s objection failed to comply with RSA 491:8-a. Instead, the trial court
relied upon the plain language of the tolling agreement, which the court
determined “does not include [the] defendant as a party bound by its terms.”
The court concluded that the agreement was “clear and unambiguous on its
face,” such that “[a]n ordinary reasonable person reading the [a]greement
would understand the term ‘parties’ to refer to Clearview Software
International, Inc. and Wiggin & Nourie, PA.” The plaintiff unsuccessfully
moved for reconsideration, and this appeal followed. Although the tolling
agreement did not expire until February 2016, the plaintiff never filed a
malpractice claim against Wiggin & Nourie.

On appeal, the plaintiff first argues that the trial court erred by finding
the agreement to be unambiguous, by failing to consider the context in which
the tolling agreement was negotiated and signed, and by failing to ascertain the
intent of the parties in negotiating it. Relying upon cases from other
jurisdictions, it asserts that “[t]he parol evidence rule does not come into play
until the court first determines the intent of the parties,” which, he contends,
requires considering “the intent of the parties as to the meaning of the [tolling]
agreement.” (Bolding omitted.) See Garden State Plaza Corp. v. S. S. Kresge
Co., 189 A.2d 448, 454 (N.J. Super. Ct. App. Div. 1963); Prichard v. Clay, 780
P.2d 359, 362 (Alaska 1989). But see R. Lord, Williston on Contracts § 33:4, at
575-76 (4th ed. 1999) (explaining that under reasoning similar to that of the
plaintiff in this case, which has been “adopted by a small but growing and
influential minority of courts, the parol evidence rule is all but abolished”).

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 The determination of whether contractual language is ambiguous is a
question of law entitled to de novo review. Found. for Seacoast Health v. Hosp.
Corp. of America, 165 N.H. 168, 172 (2013). The interpretation of
unambiguous contractual language is also a question of law, which we review
de novo. Id. The language of a contract is ambiguous if the parties to the
contract could reasonably disagree as to the meaning of that language. Id. If
the agreement’s language is ambiguous, it must be determined, under an
objective standard, what the parties, as reasonable people, mutually
understood the ambiguous language to mean. Id. In applying this standard, a
court should examine the contract as a whole, the circumstances surrounding
its execution, and the object intended by the agreement, keeping in mind the
goal of giving effect to the intentions of the parties. Id.

We conclude that the trial court in this case did not err when it found
that “the term ‘parties’” in the tolling agreement unambiguously referred “to
Clearview Software International, Inc. and Wiggin & Nourie, PA” and that “the
plain language of the [tolling agreement] does not include [the] defendant as a
party bound by its terms.” Because of the lack of ambiguity here, we also
conclude that the trial court did not err by failing to consider the
“circumstances” upon which the plaintiff relies. See id. When, as in this case,
the agreement’s language is unambiguous, “the parties’ intent will be
determined from the plain meaning of the language used in the agreement.”
Behrens v. S.P. Constr. Co., 153 N.H. 498, 503 (2006).

The plaintiff also argues that, because that evidence demonstrated that
the tolling agreement was not a totally integrated agreement, the trial court
erred by not considering the plaintiff’s extrinsic evidence. We need not decide
whether the tolling agreement was a totally integrated agreement because, even
if it were, extrinsic evidence would have been “admissible only to prove
unexpressed terms that [were] not inconsistent” with it. Richey v. Leighton, 137 N.H. 661, 664 (1993) (emphases added).

The plaintiff did not offer extrinsic evidence to prove an unexpressed
term, but rather to add the defendant as a party to the tolling agreement.
Adding a party to the tolling agreement would have directly contradicted the
plain meaning of the word “parties” in that agreement. See id.; see also
Wallington v. Red-E-Bilt Products, Inc., No. CA 2423, 1987 WL 4727, at *2
(Ohio Ct. App. Jan. 13, 1987) (explaining that “when the name of the
corporation does not appear upon the face of the agreement,” extrinsic evidence
“is not admissible to add a party who does not appear therein”). Thus, even if
the tolling agreement were not totally integrated, the plaintiff’s extrinsic
evidence would have been inadmissible to add the defendant as a party to the
tolling agreement. See Richey, 137 N.H. at 664; see also Royer Foundry &
Mach. Co. v. N.H. Grey Iron, Inc., 118 N.H. 649, 651 (1978) (ruling that the
plaintiff could not introduce extrinsic evidence to support its construction of a

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clear and unambiguous contract clause because its evidence did “not show a
meaning of the writing, but an intent wholly unexpressed in the writing”).

The plaintiff next asserts that the trial court erred by failing to exercise
its discretion to consider arguments that were raised for the first time in the
plaintiff’s motion to reconsider. We will uphold a trial court’s decision on a
motion for reconsideration absent an unsustainable exercise of discretion.
Broom v. Continental Cas. Co., 152 N.H. 749, 752 (2005). The plaintiff
contends that even if “the Motion to Reconsider raised arguments not
previously set out in pleadings,” that did “not prevent the trial court from
considering those arguments.” We agree with this statement; however, it is
equally true that the trial court was not required to consider any arguments
raised for the first time in a motion for reconsideration. As the plaintiff has not
persuaded us that the trial court unsustainably exercised its discretion by
declining to consider arguments raised for the first time in a motion to
reconsider, we uphold that decision. See Mt. Valley Mall Assocs. v.
Municipality of Conway, 144 N.H. 642, 654-55 (2000); see also Webster v.
Town of Candia, 146 N.H. 430, 445 (2001).

Affirmed.

DALIANIS, C.J., and CONBOY and BASSETT, JJ., concurred.

Eileen Fox,
Clerk

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