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Moore v. Grau

Supreme Court of New Hampshire, Merrimack

August 8, 2018


          Argued: January 18, 2018

          Devine, Millimet & Branch, P.A., of Manchester (Daniel E. Will and Joshua M. Wyatt on the brief, and Mr. Will orally), and Associated Attorneys of New England, of Manchester (John F. Skinner, III on the brief), for the plaintiff.

          Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Andru H. Volinsky and Christina A. Ferrari on the brief, and Mr. Volinsky orally), for the defendants.

          Shaheen & Gordon, P.A., of Concord (William E. Christie on the memorandum of law), for the intervenor.

          HICKS, J.

         The plaintiff, Cheryl C. Moore, M.D., appeals an order of the Superior Court (McNamara, J.) granting summary judgment to the defendants, Charles W. Grau, Esquire and Upton Hatfield, LLP, on the plaintiff's claims for legal malpractice, violation of the New Hampshire Consumer Protection Act, RSA ch. 358-A (2009 & Supp. 2017), and entitlement to an accounting and forfeiture of fees. We reverse and remand.

         The following facts are taken from the trial court's orders in this case and from undisputed documentary evidence contained in the record. The plaintiff, a pathologist, was a member of Young & Novis, P.A. (Y&N), along with her partner, Dr. Glenn Littell. Y&N provided pathology services to the intervenor, Wentworth-Douglass Hospital (WDH), until WDH elected to terminate Y&N's services, effective February 28, 2010. Prior to that date, an attorney acting on Y&N's behalf - Gregory Wirth - solicited trial counsel for a potential wrongful termination suit against WDH. Grau, an attorney at Upton Hatfield, responded, and, on October 23, 2009, the plaintiff retained Grau and his firm.

         Wirth continued to represent the plaintiff and Littell with respect to their exit from WDH. In that capacity, Wirth emailed Grau to inquire what documents or information he might need for the anticipated lawsuit. Grau responded with a list of documents and records he wanted the plaintiff and Littell to "take." Wirth forwarded Grau's response to the plaintiff and Littell on February 10, 2010.

         On February 28, the termination date for Y&N's services, the plaintiff allegedly permitted her husband, Dr. Thomas Moore, to access Y&N computers connected to WDH's network. The plaintiff's husband and Littell then downloaded confidential documents and destroyed certain electronic data.

         WDH sued the plaintiff, her husband, and Littell (the CFAA defendants) in federal court (the CFAA litigation), claiming violations of the Computer Fraud and Abuse Act (the CFAA). See 18 U.S.C. § 1030 (2012). The CFAA defendants responded with a number of counterclaims against WDH.

         In August 2012, the parties reached a tentative settlement. During negotiations preceding the tentative settlement, the CFAA defendants were jointly represented by Grau and Upton Hatfield, along with Wirth. In mid-August, however, the plaintiff hired a separate attorney, Peter Callaghan, to represent her in finalizing the settlement.

         On September 20, 2012, the plaintiff executed a settlement agreement (the Settlement Agreement) to which WDH, Y&N, Littell, and the plaintiff's husband were also parties. The Settlement Agreement resolved all claims and counterclaims in the pending litigation and contained the following provision regarding future suits (Paragraph 4):

All Parties represent that no future lawsuits will be filed against any third parties arising from the former relationship between WDH and the [CFAA defendants]. All Parties represent that they have fully disclosed to the other Parties any disclosures or complaints filed with any state, local or federal law enforcement or administrative agency, any accrediting organization, Board, professional organization or other entity of any kind that regulates, oversees, credentials, accredits or has enforcement authority over any party (collectively, "Agencies") and hereby represent that they have no basis to make any further such disclosures or complaints and shall not make such disclosures or complaints to any Agencies.

         In Paragraph 3 of the Settlement Agreement, however, WDH specifically acknowledged that the agreement did not prohibit the CFAA defendants from continuing to pursue a pending lawsuit against their insurance company.

         In March 2013, the plaintiff commenced the instant lawsuit against the defendants, alleging legal malpractice, violation of the Consumer Protection Act, and entitlement to an accounting and forfeiture of fees. WDH intervened in the action. The defendants moved for summary judgment on several grounds, including that the Settlement Agreement barred the suit. The trial court granted summary judgment on that basis, concluding that the plaintiff's claims against the defendants in the instant action "originate or grow out of or flow from her relationship with WDH," and, therefore, fall within the prohibition of Paragraph 4 of the Settlement Agreement. Having determined that the Settlement Agreement barred the suit, the court found it unnecessary to address the defendants' remaining arguments or to decide a pending motion to quash. The plaintiff unsuccessfully moved for reconsideration, and this appeal followed.

         On appeal, the plaintiff argues, among other things, that the trial court erred in granting summary judgment to the defendants because the plaintiff's legal malpractice claims do not "arise from" her relationship with WDH and, therefore, do not fall ...

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