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Avery v. Hughes

United States District Court, D. New Hampshire

May 6, 2015

Jane C. Avery
v.
Robert W. Hughes Opinion No. 2015 DNH 092

ORDER

JOSEPH A. DiCLERICO, Jr., District Judge.

Following a trial by jury, judgment was entered in this case on November 1, 2010, in favor of Jane C. Avery on her claims against Robert W. Hughes. When Hughes failed to pay the judgment, he was ordered to make periodic payments. Avery now moves to reopen the case and asks the court to hold Hughes in contempt for failing to comply with the periodic payments order and also seeks a writ of execution on Hughes's property, including his ownership interest in Prudential Spencer-Hughes Real Estate, Inc. Hughes objects to the motion.

Background

Avery's mother owned property with frontage on Lake Winnepesaukee. After her mother's death, the Estate listed the property for sale with Prudential Spencer-Hughes Real Estate, Inc., which is owned and operated by Hughes.[1] Hughes decided to buy the property himself and signed a purchase and sale agreement for that purpose. Hughes also leased and lived at the property, pending the sale.

When Hughes failed to close on the purchase and sale agreement and also failed to pay rent and make utility payments, as required by the lease agreement, Avery filed suit in June of 2009.[2] The property was later sold to someone else for a lower price. Avery claimed damages for the loss suffered in the sale and for the amount of unpaid rent and utilities. Pursuant to the orders issued on January 20, 2010, and March 16, 2010, Avery was granted a prejudgment trustee attachment against Spencer-Hughes Inc. and a real estate attachment against Robert Hughes, in the amount of $385, 709.22. The returns on the attachments were filed on April 27, 2010 (documents nos. 26 and 27).

Avery moved for partial summary judgment. She sought rulings on Count I that Hughes breached the lease agreement and was liable for certain damages, and on Count II, that Hughes breached the purchase and sale agreement and that her damages were not limited to the amount of the deposit. The court granted the motion, finding Hughes had breached both the lease agreement and the purchase and sale agreement, that Avery was entitled to at least $18, 918.50, less the security deposit, as damages for breach of the lease, and that damages for breach of the purchase and sale agreement were not limited to the amount of the deposit. The issues that then remained for trial were what, if any, additional damages were owed to Avery for breach of the lease agreement and an assessment of damages for breach of the purchase and sale agreement. The court urged the parties to undertake good faith negotiations or mediation to resolve the remaining issues.

No settlement occurred, and trial began on September 8, 2010. On September 9, 2010, the jury found that the fair market value of the house when Hughes breached the purchase and sale agreement was $1, 300, 000 and that Avery was entitled to consequential damages for certain listed expenses, which yielded damages in the amount of $263, 734.25. The court awarded Avery attorneys' fees and costs in the amount of $8, 252.69. The amended judgment was entered on November 1, 2010. The First Circuit affirmed the judgment on November 18, 2011.

On April 15, 2013, Avery moved to reopen the case, because Hughes had not paid the judgment, and asked for a hearing to determine Hughes's ability to pay and for an order requiring Hughes to make periodic payments on the judgment, pursuant to RSA 524:6-a. Avery represented that the amount owed then exceeded $301, 281.04. A hearing was held on June 12, 2013. The financial evidence presented at the hearing was out of date and did not comply with the requirements of RSA 524:6-a. For that reason, the issue of Hughes's ability to pay the judgment could not be determined. The court ordered Hughes to file the required affidavit, with any appropriate explanations, and ordered Avery to file an amended motion to enforce the judgment, based on the new financial information.

A second hearing was held on August 28, 2013. Hughes was the only witness. Hughes did not dispute the amount he owed Avery and acknowledged that he had not made any payments on the judgment. Following the hearing, the court ordered Hughes to pay Avery $10, 000 on or before November 1, 2013, and to pay Avery $1, 500 on the first day of each month thereafter, beginning on December 1, 2013, through November 1, 2014. Avery was ordered to file a motion for a hearing to reevaluate the terms of the periodic payment schedule on or before November 1, 2014.

Avery did not file a motion for a hearing to reevaluate the payment schedule on or before November 1, 2014. Neither Hughes nor Avery contacted the court or made any filing in the case within the time allowed.

On February 26, 2015, Avery filed a motion for a status conference hearing. In support, Avery stated that Hughes stopped making monthly payments in "approximately May or June of 2014." She further stated that she attempted to get Hughes to comply with the payment order but he refused, citing family health issues during the fall and into the winter. Avery said that she "forestalled seeking judicial relief" because of the reported health issues. Without citing any legal support or providing any evidence, Avery asked the court to schedule a hearing "to evaluate the violation of the Court Order by Hughes, and his failure to make payments, " for "entry of appropriate sanctions and other relief for such violation, " to reevaluate the terms of the payment schedule "including but not limited to compelling Hughes to participate in a valuation of his business, " and to allow Avery "to file for and execute on a writ of execution."

As such, Avery, who is represented by counsel, failed to request specific relief and failed to provide any factual or legal support for any of the relief alluded to in the list. Her motion was denied, but she was granted leave to file a motion to reopen the case and to seek specific relief with appropriate legal and factual support. Avery filed a motion to reopen, and Hughes filed an objection.

Discussion

Avery moves to reopen the case and for an order holding Hughes in contempt for failing to comply with the payment schedule order and for a writ of execution on Hughes's interest in Prudential Spencer-Hughes Real Estate, Inc. or, if necessary, an order requiring Hughes to sell his interest. In his objection, Hughes acknowledges that he has not made payments to Avery since June of 2014. He argues that he is financially unable to make the ordered payments and that ...


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