CHERYL C. MOORE, M.D.
CHARLES W. GRAU, ESQUIRE & a.
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.
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.
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
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.
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
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
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.
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.
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.
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.
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 ...