Richard E. Clark, Esq. v. Ryan Carrier & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0348, Richard E. Clark, Esq. v. Ryan
Carrier & a., the court on April 6, 2021, issued the following
order:

Having considered the brief filed by the plaintiff, Richard E. Clark, Esq.,
the memorandum of law filed by the defendants, Ryan R. and Katherine C.
Carrier, and the record submitted on appeal, we conclude that oral argument is
unnecessary in this case. See Sup. Ct. R. 18(1). The plaintiff appeals an order
of the Superior Court (Honigberg, J.) awarding attorney’s fees to the defendants
on the ground that he acted in bad faith. We affirm.

The instant matter concerns a replevin action that the plaintiff filed
against the defendants in January 2020, when he was in the midst of a
contentious divorce, to recover “Lucy,” one of four French Bulldogs that the
plaintiff and his then-wife owned. When the divorce action was filed in May
2019, all four of the couple’s dogs resided with the plaintiff’s wife. The
plaintiff’s wife subsequently rehomed Lucy and another dog; Lucy was given to
the defendants.

On October 16, 2019, the family division temporarily awarded Lucy and
the other rehomed dog to the plaintiff. The plaintiff’s wife moved for
reconsideration, and her motion was granted. On October 31, 2019, the family
division vacated its prior order awarding Lucy and the other rehomed dog to
the plaintiff.

The plaintiff brought this replevin action against the defendants on
January 6, 2020, to recover Lucy, alleging that he is her lawful owner. The
plaintiff’s superior court complaint did not mention the family court’s October
31, 2019 order essentially awarding Lucy temporarily to his wife.

On January 23, 2020, the plaintiff filed an expedited motion in his
divorce action, asking the family division to determine who, as between him
and his wife, had a “legal interest” in Lucy. In that motion, the plaintiff argued
that his wife had violated the family division’s anti-hypothecation order by
giving Lucy “to strangers” and averred that the family division had not yet
determined whether he and/or his wife had a legal interest in Lucy. The
plaintiff asked the family court to “[f]ind [that] . . . Lucy is joint marital property
that both [he and his wife] have a legal interest in.”
 On February 12, 2020, following a February 4 hearing, the superior
court dismissed the plaintiff’s claims for quantum meruit, unjust enrichment,
intentional infliction of emotional distress, and enhanced compensatory
damages. The superior court’s order dismissing those claims has not been
included in the appellate record.

On February 26, 2020, the superior court dismissed the remaining
claims for replevin, conversion, and joint and several liability, on the ground
that because Lucy is marital property, the family division has exclusive
jurisdiction to decide “[w]hether [the plaintiff or his wife] had any right to give
or sell the dog to Defendants.” Thereafter, the defendants sought attorney’s
fees. The superior court granted their request on June 18, 2020, finding that
the plaintiff had acted in bad faith. The plaintiff unsuccessfully moved for
reconsideration, and this appeal followed.

Although the general rule in New Hampshire is that parties pay their own
attorney's fees, a prevailing party may be awarded fees pursuant to an
established judicial exception to that general rule. See In the Matter of Mason
& Mason, 164 N.H. 391, 398 (2012). “We have recognized exceptions where an
individual is forced to seek judicial assistance to secure a clearly defined and
established right if bad faith can be established; where litigation is instituted or
unnecessarily prolonged through a party’s oppressive, vexatious, arbitrary,
capricious or bad faith conduct; as compensation for those who are forced to
litigate in order to enjoy what a court has already decreed; and [as
compensation] for those who are forced to litigate against an opponent whose
position is patently unreasonable.” Id. at 399.

Here, the trial court awarded fees because it found that the plaintiff
instituted the instant litigation in bad faith. When attorneys’ fees are awarded
against a private party who has acted in bad faith, the purpose is to do justice
and vindicate rights, as well as to discourage frivolous lawsuits. Fat Bullies
Farm, LLC v. Devenport, 170 N.H. 17, 30 (2017).

We review awards of attorney’s fees and costs under our unsustainable
exercise of discretion standard, giving substantial deference to the trial court's
decision. George v. Al Hoyt & Sons, Inc., 162 N.H. 123, 139 (2011). Our task
on appeal is not to determine whether we would have found differently; rather,
we determine whether a reasonable person could have found as the trial judge
did. In re Adam M., 148 N.H. 83, 84 (2002). We will defer to the trial court’s
factual findings unless they are unsupported by the evidence or erroneous as a
matter of law. N.H. Right to Life v. Dir., N.H. Charitable Trust Unit, 169 N.H.
95, 126 (2016). If there is some support in the record for the trial court’s
determination, we will uphold it. Fat Bullies, 170 N.H. at 30.

The trial court concluded that the plaintiff acted in bad faith, in part,
because he brought this replevin action knowing that Lucy was marital

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property and that the family division has exclusive jurisdiction to address
issues related to such property and because he knew that there was pending
litigation regarding Lucy in his divorce proceedings. The plaintiff claims that
this conduct was not “bad faith” because the family division lacked jurisdiction
to invalidate the defendants’ interest in Lucy. See In the Matter of Muller &
Muller, 164 N.H. 512, 518-19 (2013) (holding that the family division has no
jurisdiction “to disregard or invalidate a third party’s claim of interest in
marital property”).

We conclude that the superior court correctly decided that any question
regarding the disposition of Lucy as marital property was for the family
division, not the superior court. See Maldini v. Maldini, 168 N.H. 191, 195-96
(2015). In Maldini, we explained that the family division has the exclusive
jurisdiction to value and divide marital property. Id. at 195. Here, Lucy
constituted marital property. See RSA 458:16-a, II-a (Supp. 2020) (providing
that tangible property “shall include animals” and that “the property settlement
shall address the care and ownership of the parties’ animals, taking into
consideration the animals’ well-being”). Accordingly, the family division — and
not the superior court — was the proper forum for addressing issues related to
the plaintiff’s and his wife’s interest in Lucy and whether the plaintiff’s wife
violated the family division’s anti-hypothecation order by transferring Lucy to
the defendants. See Maldini, 168 N.H. at 196. Therefore, the trial court
correctly ruled that, because Lucy is marital property, the family division has
exclusive jurisdiction to decide “[w]hether [the plaintiff or his wife] had any
right to give or sell the dog to Defendants.” See id. at 195-96.

Contrary to the plaintiff’s assertions, the family division need not
disregard or invalidate the defendants’ interest in Lucy when it equitably
divides the marital property. Rather, if it finds that the plaintiff’s wife violated
the anti-hypothecation order by transferring Lucy to the defendants, the family
division may take that into account when deciding whether an equal division of
the marital estate is equitable. See RSA 458:16-a, II(f) (2018) (allowing the
family division to consider “[t]he actions of either party during the marriage
which contributed to the growth or diminution in value of property owned by
either or both of the parties”), II(o) (2018) (allowing the family division to take
“[a]ny other factor that the court deems relevant” into account).

The trial court further found that the plaintiff acted in bad faith by being
“less than forthcoming in his representations to the Court, which [resulted] in a
recommendation to the New Hampshire Attorney Discipline Office.” The record
submitted on appeal supports that finding. The plaintiff’s complaint averred
that he was Lucy’s legal owner and failed to mention the family division’s
October 31, 2019 order essentially awarding Lucy, temporarily, to his wife.
Moreover, the record shows that shortly after filing his superior court action,
the plaintiff filed a motion in the family division in which he acknowledged that
the family division had not, in fact, determined whether he or his wife owned

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Lucy. “[T]he trial court is in the best position to decide whether a party’s claim
constitutes bad faith, . . . and, given the support in the record for the trial
court's conclusion, we will not second guess it.” In re J.P., 173 N.H. 453, 468
(2020).

The plaintiff contends that the superior court violated his due process
rights because it found that he was “less than forthcoming in his
representations” to the court “before [he] was allowed any opportunity to
present his case” and “after . . . only [a] brief hearing.” (Bolding omitted.) As
the appealing party, the plaintiff has the burden of providing this court with a
record that demonstrates that he raised his appellate issues before the trial
court. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). The record
submitted on appeal does not demonstrate that the plaintiff argued in the
superior court that the court had deprived him of due process. Although the
plaintiff filed a motion for reconsideration in that court, his motion did not
allege that the court had deprived him of due process. Under these
circumstances, we decline to address his argument.

Nor do we exercise our discretion to address his due process argument
under our plain error rule. See Sup. Ct. R. 16-A. The plaintiff’s use of the
phrase “plain error” in his argument heading is insufficient to develop a plain
error argument for our review.

Affirmed.

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

Timothy A. Gudas,
Clerk

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