Louis F. Clarizio v. R. David DePuy, Esq. & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0412, Louis F. Clarizio v. R. David
DePuy, Esq. & a., the court on October 12, 2018, 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, Louis F. Clarizio, appeals an order of the Superior Court (Brown, J.),
granting summary judgment to the defendants, R. David DePuy, Esq. and
McLane, Graf, Raulerson & Middleton, P.A., on the plaintiff’s legal malpractice
claims. In its order, the trial court ruled that the plaintiff’s claims are barred
by the three-year statute of limitations. See RSA 508:4, I (2010). Although the
defendants filed a cross-appeal, they have not briefed their cross-appeal issues,
and, thus, we deem those issues waived. See In re Estate of King, 149 N.H.
226, 230 (2003). We affirm.

The trial court recited, or the record supports, the following facts. DePuy
represented the plaintiff at a divorce mediation that took place on July 29,
2008. The mediation began in the morning, but as negotiations continued into
the evening, the parties reached an impasse regarding the plaintiff’s child
support obligation. When it appeared that negotiations were going to end
unsuccessfully, DePuy and counsel for the plaintiff’s wife discussed a
resolution whereby the wife would accept a $1 million property settlement
payment and $20,000 per month in child support, on the condition that the
plaintiff agree that the latter was “permanent” and that the final agreement
contain language describing the payment as part of the overall property
settlement, non-modifiable by either party.

DePuy discussed the proposal with the plaintiff, and, after doing so,
advised him that he would draft a permanent stipulation resolving the
plaintiff’s divorce. While DePuy drafted the permanent stipulation, the plaintiff
napped. When DePuy had finished drafting the permanent stipulation, he
woke the plaintiff and presented it to him. The pertinent provisions in the
stipulation stated:

Child Support. As an overall property settlement, the parties agree
that [the plaintiff] shall pay to [his wife] the sum of $20,000.00 per
month as child support until [the youngest child] reaches the age
of 18 or terminates high school, whichever occurs later. Neither
party will seek to modify this amount under any circumstances
whatsoever and the child support shall not be increased or
 decreased under any circumstances. Said amount shall be paid on
the first day of each month beginning on October 1, 2008.

....

Property Settlement. As a full final and complete property
settlement including the parties[’] agreement for child support
payments [the plaintiff] shall pay to [his wife] the sum of
$1,000,000.00 in the following manner. $500,000 within 30 days
of the execution of this agreement, and the remaining $500,000 on
or before October 1, 2008.

(Emphases added.) The plaintiff elected not to read the stipulation before
signing it, instead choosing to rely upon DePuy’s affirmative responses to the
following questions: “Is it the same that we just agreed to?” “Same $20,000 in
child support?” “Same property settlement?”

Beginning in December 2008, the plaintiff began inquiring of DePuy
whether, if he were to obtain full custody of the children, his child support
obligation could be modified. On February 10, 2010, DePuy sent an opinion
letter to the plaintiff, which stated, in pertinent part:

[I]t appears that the child support order is modifiable despite the
language stating that it is not modifiable and despite the language
stating that it is part of a property settlement.

....

In the Stipulation entered into by you and [your ex-wife] . . . it is
specifically provided that you shall pay [your ex-wife] $20,000 per
month as child support as part of an overall property settlement
until [your youngest child] terminates high school or reaches age
18. Since property settlements are, generally speaking, not
modifiable, such a provision might be viewed as preventing any
modification of the child support order until [your youngest child]
reaches the age of 18 or terminates high school.

....

[I]f you obtained a substantial change in parenting time, and if you
were to pursue modification of the child support order because of
that change in custody . . . , there is a substantial risk that [your
ex-wife] would then seek to reopen the property settlement division
on the basis that she agreed to that division in reliance on the
intended permanent nature of the child support payments and
that, if the child support is found to be modifiable, then the

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 property settlement should be reconsidered. There is legal support
for such an approach. . . . Thus, if you were to succeed in
obtaining a modification of child support, the court might
reconsider the property division.

In July 2011, the plaintiff was awarded primary care and custody of the
children, and the children have resided with him ever since. Although the
plaintiff urged DePuy to file a motion to modify his child support, DePuy
advised him to wait. DePuy did not file a motion to modify the plaintiff’s child
support obligation until February 10, 2012.

On September 27, 2012, because of the ambiguity in the divorce
stipulation regarding whether the plaintiff’s child support payments were part
of the overall property settlement, the circuit court denied his ex parte request
to suspend his child support obligation immediately. Nonetheless, in late
2012, following an evidentiary hearing, the circuit court concluded that the
parties intended the monthly payments to be child support and terminated the
plaintiff’s obligation to make them. The circuit court ruled, however, that the
plaintiff would not be reimbursed for the child support payments he had
previously made in light of the undue hardship it would place on his ex-wife.

The plaintiff filed the instant action on January 20, 2015, alleging that
DePuy committed legal malpractice by failing to: (1) obtain his informed
consent before drafting the language in the permanent stipulation related to
child support; (2) withdraw from representing the plaintiff when it became
apparent in December 2009 that the stipulation’s language would become an
issue in post-divorce litigation; and (3) file a timely motion to modify child
support in July 2011, when the plaintiff obtained primary custody and care of
his children. According to his appellate brief, for this allegedly negligent
conduct, the plaintiff sought to recover the approximately $200,000 in child
support he paid from March 2012 through December 2012 and the $500,000
in attorney’s fees that he paid the defendants after December 2009.

Thereafter, the defendants moved for summary judgment, arguing, in
pertinent part, that the plaintiff’s claims are barred by the three-year statute of
limitations. See RSA 508:4. The plaintiff asserted that the discovery rule tolled
the statute of limitations until September 27, 2012, the date on which his
emergency request to suspend his child support obligation was denied. See id.;
see also Lamprey v. Britton Constr., 163 N.H. 252, 257 (2012) (setting forth the
discovery rule under which a statute of limitations is tolled until a plaintiff
knew or reasonably should have known that he suffered some harm because of
the defendant’s conduct). The trial court ruled that the discovery rule did not
render the plaintiff’s legal malpractice claims timely. Specifically, the court
found that, as of July 2011, the plaintiff knew or should have known of
DePuy’s alleged negligence and of its causal relationship to his harm. Thus,
the trial court granted summary judgment to the defendants.

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 When reviewing a trial court’s summary judgment ruling, we consider the
affidavits and other evidence, and all inferences properly drawn from them, in
the light most favorable to the non-moving party. Furbush v. McKittrick, 149
N.H. 426, 429 (2003). Summary judgment may be granted only where no
genuine issue of material fact is present and the moving party is entitled to
judgment as a matter of law. Id. We review the trial court’s application of the
law to the facts de novo. Id.

To be timely, a legal malpractice action must be brought within three
years of when it arose. See id. at 430; see also RSA 508:4. “A cause of action
arises once all the necessary elements are present.” Pichowicz v. Watson Ins.
Agency, 146 N.H. 166, 167 (2001) (quotation omitted). “A negligence action
arises when causal negligence is coupled with harm to the plaintiff.” Id.
(quotation omitted).

In this case, the alleged negligence was DePuy’s failure to: (1) obtain the
plaintiff’s informed consent before drafting the permanent stipulation’s child
support provisions; (2) withdraw from representing the plaintiff in December
2009 when it became apparent that the stipulation’s language would become
an issue in post-divorce litigation; and (3) file a timely motion to modify child
support in July 2011, when the plaintiff obtained primary custody and care of
his children. Those allegedly negligent acts occurred in July 2008, December
2009, and July 2011, respectively. The plaintiff’s legal malpractice lawsuit,
filed in January 2015, is, therefore, untimely.

When a suit is initiated more than three years after the act or omission
alleged to constitute malpractice, “the plaintiff has the burden of proving that
an exception applies to toll the statute of limitations such that his malpractice
claim would be timely filed.” Furbush, 149 N.H. at 430. One such exception is
the discovery rule, which provides:

when the injury and its causal relationship to the act or omission
were not discovered and could not reasonably have been
discovered at the time of the act or omission, the action shall be
commenced within 3 years of the time the plaintiff discovers, or in
the exercise of reasonable diligence should have discovered, the
injury and its causal relationship to the act or omission
complained of.

Id. (quotation omitted); see RSA 508:4, I.

The discovery rule tolls the statute of limitations in a legal malpractice
case only until “the plaintiff could reasonably discern that he suffered some
harm caused by the defendant’s conduct.” Furbush, 149 N.H. at 431. The
plaintiff need not be certain that the defendant actually acted negligently. See
id. Nor need he be certain of the causal connection between his harm and the

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defendant’s conduct; rather, the reasonable possibility that it existed will
suffice. Lamprey, 163 N.H. at 257. Further, it does not matter that “the
plaintiff may not have understood the full extent of the harm that would result”
from the defendant’s malpractice. Furbush, 149 N.H. at 431. Indeed, “the
discovery rule is not intended to toll the statute of limitations until the full
extent of the plaintiff’s injury has manifested itself.” Id.

The trial court ruled that the discovery rule tolled the statute of
limitations in this case until July 2011, by which time the plaintiff: (1) “knew,
or should have known, he would . . . be forced to incur the additional legal
costs of litigating the modification issue in light of [DePuy’s] [allegedly
negligent] drafting, all the while continuing to make child support payments to
[his ex-wife] in the interim”; (2) “discovered, or should have discovered,
[DePuy’s alleged] conflict of interest”; and (3) “knew, or should have known,
that he would continue making $20,000 payments to [his ex-wife] unless and
until a modification occurred.” See Pichowicz, 146 N.H. at 167, 168 (ruling
that when the plaintiffs began to incur legal fees for which the insurer did not
indemnify them, they knew or should have discovered that there was a possible
causal connection between their having to incur such fees and the defendant’s
alleged negligence in failing to procure proper insurance for them).

On appeal, the plaintiff argues that the trial court erred in finding that he
knew of the causal relationship between the alleged negligence and his harm
because, by so doing, the trial court improperly drew inferences against him,
instead of in his favor, and because: (1) “[t]here was not one word of testimony
from [the plaintiff] that he knew there was a conflict of interest when he got
custody of the children in July 2011”; (2) “[n]or did DePuy testify or even assert
. . . that he told [the plaintiff] of a conflict of interest when child custody
changed”; (3) “[i]f getting temporary custody of the children in July 2011
somehow alerted [the plaintiff] to DePuy’s conflict of interest, [the plaintiff]
would not have kept him on and paid him tens of thousands of dollars to
modify his child support in 2012”; (4) the plaintiff “was never informed of
DePuy’s malpractice”; (5) “DePuy assured [the plaintiff] in July 2011 he would
retroactively recover all future child support payments once [the plaintiff]
obtained permanent custody”; (6) “DePuy said nothing in the [February 2010]
letter about DePuy having done anything wrong” (emphasis omitted); and (7)
“there is a not a single word about [DePuy’s alleged conflict of interest]
anywhere in the [February 2010] letter.”

We are not persuaded. The plaintiff’s arguments may address the issue
of whether he subjectively knew of DePuy’s alleged legal malpractice and the
harm it caused him but fail to demonstrate that, “in the exercise of reasonable
diligence,” RSA 508:4, he could not have “reasonably discern[ed] that he
suffered some harm caused by [DePuy’s] conduct,” Furbush, 149 N.H. at 431.
Under these circumstances, we conclude that the plaintiff has failed to meet

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his burden, as the appealing party, of demonstrating that the trial court
committed reversible error. See Gallo v. Traina, 166 N.H. 737, 740 (2014).

Affirmed.

LYNN, C.J., and BASSETT and HANTZ MARCONI, JJ., concurred.

Eileen Fox,
Clerk

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