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Lynne Digaetano & A. v. John M. Digaetano

May 11, 2012

LYNNE DIGAETANO & A.
v.
JOHN M. DIGAETANO



The opinion of the court was delivered by: Lynn, J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Argued: March 8, 2012

The plaintiffs, Lynne DiGaetano, Michael John DiGaetano, Christopher D. DiGaetano, Scott M. DiGaetano, and Shauna Arsenault, appeal an order of the Superior Court (McHugh, J.) granting the motion in limine of the defendant, John M. DiGaetano, to exclude parol evidence. The defendant cross-appeals a prior order of the same Court (Nicolosi, J.) denying his motion to strike the plaintiffs' notice of appeal. We reverse the order denying the defendant's motion to strike.

I

The relevant facts are not in dispute. Domenica and Michael DiGaetano were a married couple with two sons, one of whom is the defendant. On June 7, 1996, the couple established a family trust holding title to their home in Salem, and named their grandchildren and great-grandchildren, including the plaintiffs, as beneficiaries of the trust. Paragraph eleven of this trust provided that the trust "may be revoked in its entirety or amended from time to time by an instrument in writing executed by the said Donors jointly or by a surviving Donor."

Michael DiGaetano died in November 2002. Domenica then amended the trust in May 2003, establishing the defendant as the sole trustee and beneficiary. Domenica died in June 2006. Following his mother's death, the defendant sold his parents' former home held by the family trust, for net proceeds of $263,112.92.

Seeking to establish himself as the rightful owner of the proceeds, the defendant petitioned the Rockingham County Probate Court in February 2008 to interpret the trust. After a six-day bench trial, the Probate Court (Hurd, J.) concluded that the trust, as amended by Domenica in May 2003, is valid and enforceable, and ruled in favor of the defendant.

The plaintiffs then appealed to the superior court and sought a de novo jury trial pursuant to RSA 547:11-d (2007), a since-amended statute providing for appeal from the probate court to the superior court where the right to a jury trial is guaranteed by the constitution or by statute. The plaintiffs argue that they were entitled to a jury trial on the issues of whether the original family trust constituted a contractual "common plan," and whether Domenica breached that contract when she amended the original trust. The defendant moved to strike the plaintiffs' notice of appeal, contending that the superior court lacked jurisdiction. After the court denied his motion to strike, the defendant filed a motion in limine to exclude parol evidence. The superior court granted the motion, and, concluding that the plaintiffs could not sustain their burden of proof in the jury trial without the excluded evidence, dismissed the case. The plaintiffs now appeal the superior court's order granting the motion in limine, and the defendant cross-appeals the court's order denying his motion to strike the plaintiffs' appeal.

II

We first address the defendant's contention in his cross-appeal that the superior court lacked jurisdiction over this case because it was within the exclusive jurisdiction of the probate court. At the time of the superior court's ruling, RSA 547:11-d (2007) (amended in 2011) provided, in relevant part:

In cases where a right to jury trial is guaranteed by the constitution or granted by statute, a person may, at the time judgment by the probate court is declared, appeal therefrom to the superior court.

The plaintiffs argued that they were entitled to a jury trial on the issues of whether Domenica and Michael DiGaetano entered into a contractual "common plan" and whether Domenica breached that contract by amending the trust. The superior court agreed, and ruled that "[t]he plain language of RSA 547:11- d allows a party to request by appeal a trial by jury after the decision of the probate court," and that the plaintiffs were entitled to a jury trial "as a matter of common law and statute."

Whether the plaintiffs have a constitutional or statutory right to a jury trial under RSA 547:11-d is a question of law, which we review de novo. New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 385 (2011). We are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. Id. We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meaning to the words used. Id.

We note, as an initial matter, that "[t]rusts are, and have been since they were first enforced, within the peculiar province of courts of equity." III A.W. Scott & W.F. Fratcher, Scott on Trusts § 197, at 188 (4th ed. 1988). In other words, "equity has original and complete jurisdiction over trusts[.]" G.G. Bogert & G.T. Bogert, The Law of Trusts and Trustees § 870, at 136 (rev. 2d ed. 1995); see also 76 Am. Jur. 2d Trusts § 594, at 624 (2005) ("[A]ctions involving the enforcement of trusts or liability of trustees are generally based in equity."). New Hampshire law is consistent with this general principle, and does not provide a right to jury trial in matters of equity. See Petition of Atkins, 126 N.H. 577, 578-79 (1985) (noting that the right to jury trial in probate matters is "not constitutionally guaranteed, nor did it ...


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