In re Estate of Frederick G. McCaffery

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0653, In re Estate of Frederick G.
McCaffery, the court on August 10, 2018, issued the following
order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The plaintiff, Rebecca McCaffery, appeals the order of the Circuit Court
(Weaver, J.) granting the motion filed by the defendants, Stephen McCaffery
and Michael McCaffery, to approve a settlement agreement, and denying her
motion to vacate the agreement on grounds of duress. The plaintiff argues that
the trial court erred in: (1) ruling that she failed to state a claim for duress;
and (2) failing to schedule an evidentiary hearing.

The record shows that the parties participated in private mediation to
resolve a dispute involving their father’s estate. After lengthy negotiations,
during which all parties were represented by counsel, the parties reached a
settlement. Nine days later, the plaintiff, having discharged her attorney, filed
a motion to vacate the settlement, to which the defendants objected. The
defendants filed their motion to approve the settlement, to which the plaintiff
objected. The plaintiff, represented by new counsel, submitted an affidavit with
her objection. In her affidavit, the plaintiff alleged that she signed the
settlement agreement only after her attorney repeatedly yelled at her to “take
the deal” and threatened to withdraw as her lawyer. The plaintiff alleged that
her attorney told her that she did not want to “deal with [the] case for six more
months” and suggested that she would not give the plaintiff a ride home from
the mediation if she did not sign the agreement.

“To establish duress, a party must ordinarily show that it involuntarily
accepted the other party’s terms, that the coercive circumstances were the
result of the other party’s acts, that the other party exerted pressure
wrongfully, and that under the circumstances the party had no alternative but
to accept the terms set out by the other party.” In re Estate of Hollett, 150
N.H. 39, 42 (2003) (quotation omitted). The plaintiff does not allege that the
defendants coerced her to accept the settlement agreement; rather, she alleges
that the coercion came from her own attorney. To support a claim of duress
under these circumstances, the plaintiff relies upon a federal case, Bistany v.
PNC Bank, NA, 585 F.Supp.2d 179, 183 (D. Mass. 2008), in which the court
observed that, “in general, duress must emanate from the opposing party to an
agreement, not one’s own attorney, unless the opposing party knows of the
duress.” The plaintiff alleged that the defendants knew of the duress because,
at approximately 8:30 p.m., she walked into the lobby where the mediation was
being held and, “within the hearing of” the mediator and opposing counsel, told
her attorney that she “wanted to leave.” The plaintiff alleged that her attorney
was “visibly disappointed,” and that the two of them returned to the conference
room they had been using, where the attorney “again threatened to withdraw”
if the plaintiff did not sign the agreement. The plaintiff alleged that she signed
the agreement because she felt that the only way she could leave the mediation
was to sign it.

The trial court, accepting Bistany as a correct statement of New
Hampshire law for purposes of its order, ruled that the plaintiff’s allegations
were insufficient to show that the defendants and their attorney knew of the
duress. Accordingly, the trial court found “no grounds to vacate the
settlement,” even “accept[ing] everything claimed by [the plaintiff] as accurate.”

On appeal, the plaintiff argues that the trial court erred in its ruling
because the statement contained in her objection to the defendants’ motion to
approve the settlement agreement – that the defendants and their attorney
“knew about the duress” – must be accepted as true for purposes of the court’s
ruling, which was based upon the pleadings. However, at the hearing on the
motion, the plaintiff agreed that the relevant allegations – the “facts” that she
was “standing on” – were those contained in her affidavit. The plaintiff did not
assert in the trial court that it was required to consider statements in pleadings
that were not supported by her affidavit or reasonable inferences that could be
drawn from it. See Chasan v. Village District of Eastman, 128 N.H. 807, 813
(1986) (“Having acquiesced in the procedure employed, the plaintiffs cannot
now object to the form of the proceeding.”). We agree with the trial court that,
as a matter of law, the plaintiff’s affidavit cannot be reasonably construed to
establish duress. Even if the trial court had been required to consider the
statements in the pleadings, however, we note that it would not have been
required to credit the mere conclusory assertion, without more, that the
defendants “knew about the duress.” See ERG, Inc. v. Barnes, 137 N.H. 186,
190 (1993) (stating that on a motion to dismiss for failure to state a claim, the
trial court will not assume the truth of allegations that are not well-pleaded,
including conclusions of fact and principles of law).

The plaintiff also argues that the trial court, in ruling that, “there is no
evidence that any of the other parties understood that there could be any kind
of duress arising from the mediation,” applied an incorrect legal standard,
given that there had not been an evidentiary hearing. Assuming, without
deciding, that the plaintiff preserved this issue for review, but see Prob. Div. R.
59-A(1); N.H. Dep’t of Corrections v. Butland, 147 N.H. 676, 679 (2002), we
construe the trial court’s order to rule that the allegations in the affidavit, and
the reasonable inferences that can be drawn from them, are insufficient to

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state a claim for duress, and we agree with the ruling. Accordingly, we cannot
conclude that the trial court erred by not scheduling discovery or an
evidentiary hearing on her motion.

Finally, the plaintiff argues that this court “should adopt the
Restatement (Second) of Contracts § 175(2) (1981) and hold that duress from a
third party to a transaction may render the contract voidable by the victim if
the other party to the transaction has knowledge of such duress.” For
purposes of its ruling, the trial court accepted this statement of the law to be
correct and found that the plaintiff failed to state a claim even “accept[ing]
everything claimed by [the plaintiff] as accurate.” Accordingly, for purposes of
this case, we need not decide whether to adopt this section of the restatement
of contracts. See In re Guardianship of R.A., 155 N.H. 98, 100-101 (2007)
(discussing mootness doctrine).

Affirmed.

Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Eileen Fox,
Clerk

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