Braiterman Law Offices, P.L.L.C.
Darrell Murdough, Jr.,
The plaintiff, Braiterman Law Offices, P.L.L.C., appeals the trial court's order awarding the defendant, Darrell Murdough, Jr., $800 on his counterclaim and granting his motion for attorney's fees. We affirm in part and reverse in part.
We first address the plaintiff's challenge to the trial court's award of attorney's fees. We review the trial court's award of attorney's fees under an unsustainable exercise of discretion standard, giving deference to the trial court's decision. LaMontagne Builders v. Bowman Brook Purchase Group, 150 N.H. 270, 275 (2003). "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. If there is some support in the record for the trial court's determination, we will uphold it." Id. (quotation omitted).
The plaintiff first argues that awarding the defendant attorney's fees was error because his motion for such fees was untimely. Assuming, without deciding, that the motion was untimely, we conclude that the trial court sustainably exercised its discretion by considering it. District Court Rule 1.1 permits the court to waive the application of any rule "[a]s good cause appears and as justice may require." Based upon our review of the record, we determine that the court reasonably could have found good cause to waive application of the rule regarding the timeliness of motions seeking post-decision relief.
The plaintiff next contends that the award of attorney's fees was erroneous because there was no evidence that the plaintiff acted in bad faith, vexatiously, wantonly or for oppressive reasons. Although parties ordinarily are responsible for their own attorney's fees, we have recognized a number of exceptions to this general rule. Van Der Stok v. Voorhees, 151 N.H. 679, 684 (2005). These exceptions "include instances where litigation is instituted or unnecessarily prolonged through a party's oppressive, vexatious, arbitrary, capricious or bad faith conduct and cases in which parties are forced to litigate against an opponent whose position is patently unreasonable." Id. (quotation omitted). "[F]or purposes of justifying a fee award 'bad faith' is not limited to its narrow sense of an intentional disregard of duty or an intent to injure, but may be said to exist whenever an individual is forced to seek judicial assistance to secure a clearly defined and established right, which should have been freely enjoyed without such intervention." Indian Head National Bank v. Corey, 129 N.H. 83, 87 (1986) (quotation, citation and ellipsis omitted).
The trial court awarded the defendant attorney's fees based upon its finding that "there was overreaching on the plaintiff's part." Our review of the record does not reveal support for a finding that the plaintiff acted in bad faith, oppressively, arbitrarily, capricious, or vexatiously in bringing the collection action. Although the trial court ultimately found against the plaintiff, we cannot conclude that bringing the action to collect fees, which the defendant conceded he did not pay, was bad faith, oppressive, arbitrary, capricious or vexatious conduct. Accordingly, we reverse the trial court's award of attorney's fees.
In his motion for reconsideration to the trial court, the defendant asserted that he was entitled to attorney's fees because he had "to defend himself against plaintiff's grossly bloated claims. In that sense, defendant . . . has had to 'seek judicial assistance to secure a clearly defined and established right, which should have been freely enjoyed without such intervention.'" In Van Der Stok, the court made clear that "vested and statutory rights are the kind which should have been freely enjoyed without having to bring suit." Van Der Stok, 151 N.H. at 684 (quotation omitted). The defendant's counterclaim against the plaintiff was not of that character. See id. It was merely a cause of action, which had to be litigated to obtain relief. See id. at 684-85.
To the extent that the trial court found that the plaintiff acted in bad faith because its bill included a $4, 000 accounting error, we conclude that this was an unsustainable exercise of discretion. The record shows that the parties stipulated to the error before trial and agreed that the error should be deducted from the total fees sought. At the hearing, the defendant's counsel conceded that the accounting error was not the basis for the defendant's counterclaim. Moreover, even without the error, the defendant still owed the plaintiff nearly $4, 000 in fees, and thus, notwithstanding the error, the plaintiff had a good faith basis for bringing the collection action.
While the record arguably supports a finding that the plaintiff acted improperly in the defendant's custody action, this conduct could have been the basis for an award of damages on the defendant's counterclaim, not an award of fees in the collection action.
We next address the plaintiff's challenge to the trial court's award of $800 to the defendant on his counterclaim. In reviewing damage awards, we view the evidence in the light most favorable to the prevailing party. T & M Assocs. v. Goodrich, 150 N.H. 161, 164 (2003). The court will overturn a damage award only if it finds that the award is clearly erroneous. Id. New Hampshire law does not require mathematical certainty in computing damages. Id. The law does, however, require an indication that the award of damages was reasonable. Id. The plaintiff contends that the court awarded this amount to the defendant as "damages" for his failure to finish the plaintiff's child custody case. The plaintiff asserts that this was error because it did not agree to complete the defendant's custody case.
In effect, the plaintiff construes the defendant's counterclaim as a breach of contract claim. The record does not support this construction. The defendant's counterclaim sought damages for the plaintiff's excessive fees and poor legal services, not for breach of contract. As he alleged: "Plaintiff has received payment from the defendant over and above the fair market value for the services that the plaintiff provided and defendant has incurred damages as a result of plaintiff's failure to perform." The defendant averred that he was "charged for motions in connection with plaintiff's failure to perform his legal duties as required in a timely manner" and was "charged for delay which was caused by erroneous and illegal advice by plaintiff with respect to the payment of child support."
The court found that there was merit to the defendant's counterclaim and awarded damages to compensate the plaintiff for the defendant's excessive fees and poor legal service, not for its failure to complete the child custody case. As our review of the record reveals ample support for the court's damage award, we uphold it.
Affirmed in part and reversed in part.
NADEAU, DALIANIS and DUGGAN, JJ., ...