Sanford A. Woodmansee v. Andrea V. Lasker, Esquire

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0206, Sanford A. Woodmansee v. Andrea
V. Lasker, Esquire, the court on November 30, 2018, issued the
following order:

Having considered the brief, memoranda of law, 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, Sanford A. Woodmansee, appeals the order of the Superior
Court (Delker, J.) dismissing his complaint against the defendant, Andrea V.
Lasker, Esquire, for fraud, fraudulent recording of a foreclosure deed, and
violation of the consumer protection act. The trial court ruled that the
complaint failed to state a claim upon which relief may be granted.

When reviewing a trial court’s dismissal of a complaint for failure to state
a claim, we assume the truth of the plaintiff’s well-pleaded factual allegations
and construe all reasonable inferences from them in the light most favorable to
him. Snierson v. Scruton, 145 N.H. 73, 76 (2000). Dismissal is appropriate if
the facts pleaded do not constitute a basis for legal relief. Beane v. Dana S.
Beane & Co., 162 N.H. 708, 711 (2010). The trial court may also consider
documents attached to the plaintiff’s pleadings, documents the authenticity of
which are not disputed by the parties, official public records, or documents
sufficiently referred to in the complaint. Id. The trial court need not accept
allegations in the complaint that are merely conclusions of law. Konefal v.
Hollis/Brookline Coop. School Dist., 143 N.H. 256, 258 (1998).

“To establish fraud, a plaintiff must prove that the defendant made a
representation with knowledge of its falsity or with conscious indifference to its
truth with the intention to cause another to rely upon it.” Snierson, 145 N.H.
at 77. “In addition, a plaintiff must demonstrate justifiable reliance.” Id.
In his complaint, the plaintiff alleges that, at a structuring conference in a
foreclosure action, the defendant, as an attorney for the foreclosing party,
misrepresented material facts to the court, including her statement that the
plaintiff’s appeal of the trial court’s injunction order, which had required the
plaintiff to make monthly escrow payments, had been “denied” by this court as
an improper interlocutory appeal. The plaintiff alleges that the defendant
either knew or demonstrated conscious indifference to the fact that his appeal
had been dismissed, not denied, as an improper interlocutory appeal; that the
dismissal was without prejudice to raising the issues in a subsequent appeal;
and that it was subject to a motion for reconsideration.
 The plaintiff further alleges that the trial court reasonably relied upon
the defendant’s misstatement to lift its order enjoining the foreclosure and that,
as a result, his home was wrongfully foreclosed upon. For purposes of this
order, we assume, without deciding, that the plaintiff’s claims are not subject
to the litigation privilege or barred by the doctrine of res judicata or the
applicable statutes of limitations.

A transcript of the structuring conference shows that, prior to the
conference, the trial court received and reviewed this court’s order dismissing
the appeal, and that it understood, before lifting the injunction, that the order
was subject to a motion for reconsideration. As the trial court stated in its
order issued after the conference, it lifted the injunction not only because the
plaintiff’s interlocutory appeal was improper, but also because the plaintiff
failed to comply with the conditions of the injunction order or to seek a stay of
the order. Thus, in dismissing the plaintiff’s complaint in this case, the trial
court ruled that the defendant’s alleged misrepresentation was immaterial.
Even if the alleged misrepresentation was material, the record shows that the
trial court did not rely upon it to lift the injunction. Thus, we conclude that
the plaintiff’s allegations are not reasonably susceptible of a construction that
would permit recovery for fraud. See Snierson, 145 N.H. at 78. The plaintiff’s
count for fraudulent recording, which is based upon the same allegations, fails
for the same reason.

The plaintiff’s final claim asserts that the defendant’s above-described
conduct violated the consumer protection act. The consumer protection act
“proscribes unfair or deceptive trade practices.” Fat Bullies Farm, LLC v.
Devenport, 170 N.H. 17, 24 (2017); see RSA 358-A:2 (2009). “[T]he
objectionable conduct must attain a level of rascality that would raise an
eyebrow of someone inured to the rough and tumble of the world of commerce.”
Id. (quotation omitted). We conclude that the above-described allegations in
the plaintiff’s complaint regarding the defendant’s conduct fail to state a claim
for violation of the consumer protection act under this standard. See id.

The defendant’s request for attorney’s fees and costs is denied.

Affirmed.

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

Eileen Fox,
Clerk

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