Donald Toy & a. v. City of Rochester & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0426, Donald Toy & a. v. City of
Rochester & a., the court on June 8, 2021, issued the following
order:

Having considered the brief, memorandum of law, and record submitted
on appeal, we conclude that oral argument is unnecessary in this case. See
Sup. Ct. R. 18(1). The City of Rochester appeals the decision of the Superior
Court (Howard, J.), upon remand, ordering equitable relief and awarding
attorney’s fees to the plaintiffs, Donald Toy and Bonnie Toy, for having
conferred a substantial benefit on bidders and taxpayers by successfully
seeking a requirement of fairness in the bid procedures. Adopting the remedy
we suggested in Toy v. City of Rochester, 172 N.H. 443, 454 (2019), the trial
court ordered the city to reacquire title to the lot at issue and, if there is a
subsequent sale, to treat all bidders fairly and equally. On appeal, the city
does not directly challenge the merits of the underlying order; rather, it argues
that the trial court erred in: (1) awarding attorney’s fees in a declaratory
judgment action; and (2) determining the amount of the attorney fee award
without conducting a Funtown analysis. See Funtown USA, Inc. v. Town of
Conway, 129 N.H. 352, 356 (1987). The city also argues that we should
overrule Irwin Marine, Inc. v. Blizzard, Inc., 126 N.H. 271 (1985), the case
upon which the trial court relied before and after remand, and upon which we
relied in our opinion. See Toy, 172 N.H. at 453. We affirm.

The city first argues that the trial court erred in awarding attorney’s fees
on remand because the only remaining claim was for declaratory judgment
under RSA 491:22 (Supp. 2020), which does not “permit awards of costs and
attorney’s fees under RSA 491:22-b in declaratory judgment actions that are
not for the purpose of determining insurance coverage.” RSA 491:22, I; see
New England Backflow v. Gagne, 172 N.H. 655, 667 (2019). However, as the
trial court correctly noted, the plaintiffs’ complaint invoked the court’s equity
jurisdiction, not merely a claim under RSA 491:22. Accordingly, the city’s
argument is misplaced.

The city next argues that the trial court erred in awarding attorney’s fees
without conducting a Funtown analysis. We review the trial court’s award of
attorney’s fees under our unsustainable exercise of discretion standard,
keeping in mind the substantial deference accorded to a trial court’s decision
on attorney’s fees. Demers Agency v. Widney, 155 N.H. 658, 664-65 (2007). To
be reversible on appeal, the discretion must have been exercised for reasons
clearly untenable or to an extent clearly unreasonable to the prejudice of the
objecting party. Arcidi v. Town of Rye, 150 N.H. 694, 704 (2004). If there is
some support in the record for the trial court’s determination, we will uphold it.
Id.

In Funtown, we set forth “eight guiding factors for use in determining
whether an attorney’s fee [award] is reasonable.” Funtown, 129 N.H. at 356.
The trial court should consider: (1) the amount involved; (2) the nature,
novelty, and difficulty of the litigation; (3) the attorney’s standing; (4) the skill
employed; (5) the time devoted; (6) the customary fees in the area; (7) the extent
to which the attorney prevailed; and (8) the benefit bestowed on the clients. Id.

To the extent that the city argues that the trial court must make express
findings as to each of these factors, the city provides no authority for its
position. Generally, we assume that the trial court made all subsidiary
findings necessary to support its decision, even if it did not do so expressly.
See Nordic Inn Condo. Owners’ Assoc. v. Ventullo, 151 N.H. 571, 586 (2004).
The city specifically challenges the trial court’s findings that the plaintiffs’
attorneys prevailed, and that they bestowed a benefit upon their clients. The
city argues that the plaintiffs should receive no attorney’s fees, or only a
portion of their fees, because they did not actually achieve their litigation goal
of obtaining ownership of the disputed parcel. We disagree.

In Irwin Marine, we held that the City of Laconia should be required to
pay the plaintiff’s attorney’s fees for having conferred a substantial benefit on
bidders by setting aside a sale that was based upon an unfair bid procedure,
notwithstanding the fact that the plaintiff did not achieve the goal of security
ownership of the property. Irwin Marine, 126 N.H. at 276-77. Similarly, in this
case, the trial court found that the plaintiffs “vindicated [their] own interest in
setting aside a sale of municipal property that was based on an unfair public
bidding procedure,” and “conferred a substantial benefit on bidders as well as
[Rochester’s] citizens and taxpayers by successfully seeking a requirement of
fairness,” quoting Irwin Marine, 126 N.H. at 276-77. Keeping in mind the
substantial deference accorded to a trial court’s decision on attorney’s fees, see
Demers Agency, 155 N.H. at 665, we cannot conclude that the court
unsustainably exercised its discretion in awarding fees on this basis.

Finally, the city argues that we should now overrule Irwin Marine, a case
on which we relied, in part, in our analysis. In our opinion in the previous
appeal, we concluded that, in contravention of Irwin Marine, the city failed to
treat the plaintiffs “fairly and equally” because it did not require the Philbrooks
to accept the same restrictive covenant demanded of the plaintiffs. See Toy,
172 N.H. at 454. At that time, the city did not ask us to overrule Irwin Marine,
a point we specifically noted in our opinion. See id. at 450. Under the law of
the case doctrine, issues that have been decided, either explicitly or by
necessary inference from the earlier disposition, constitute the law of the case.
Saunders v. Town of Kingston, 160 N.H. 560, 566 (2010). The continuing

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validity of Irwin Marine was not challenged by the city, and, implicitly, by
necessary inference, we deemed it relevant, if not controlling, authority.
Accordingly, we conclude that the law of the case doctrine precludes
reconsideration of this issue in this appeal. See Saunders, 160 N.H. at 566.

Affirmed.

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

Timothy A. Gudas,
Clerk

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