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Riso v. Riso

Supreme Court of New Hampshire

May 10, 2019

KENNETH T. RISO & a.
v.
GREGORY R. RISO & a.

          Argued: February 20, 2019

          Devine, Millimet & Branch, Professional Association, of Manchester (William F. Gramer on the brief and orally), for the petitioners.

          Myskowski & Matthews, PLLC, of Concord (Jan P. Myskowski on the brief and orally), for the respondent.

          LYNN, C.J.

         Respondent Gregory R. Riso appeals an order of the Circuit Court (Weaver, J.) denying his second post-trial motion for reconsideration based on the court's finding that he forfeited his right to a statute of limitations defense.[1] We affirm.

         I

         The following facts are drawn from the trial court's orders, or are otherwise supported by the record and undisputed on appeal. On June 8, 2016, the petitioners, Kenneth T. Riso and Rocco R. Riso, Jr., filed a petition in the trial court requesting the partition of property in Raymond that was held by them and their siblings as tenants in common following the death of their mother on March 10, 2012. The petition also sought relief against the respondent individually for money allegedly converted by the respondent from his mother's estate. Specifically, the petition asserted three claims against the respondent for breach of fiduciary duty, conversion, and fraudulent misrepresentation. These claims stemmed from two checks that the respondent drew from his mother's personal account under authority of a durable power of attorney she executed prior to her death. The first check, in the amount of $65, 000, was dated March 6, 2012, and was made payable to the respondent. The second check, in the amount of $8, 825, was dated March 7, 2012, and was made payable to an individual whose deceased husband had completed work on the property. Both checks were processed for payment on March 15, 2012. The respondent filed an answer on August 29, 2016, in which he asserted, among other things, that the petitioners' claims were barred by the statute of limitations.

         After further pleadings and a structuring conference, the case proceeded to trial. At trial, the respondent testified that the March 6 and March 7 checks (the checks) were written at his mother's request while she was in the hospital prior to her death. The respondent further testified that his mother wanted him to be reimbursed for expenses related to work he had done on the property.

         Following trial, on September 29, 2017, the petitioners submitted their proposed findings of fact and conclusions of law to the trial court. In support of their claim that the respondent breached his fiduciary duties, the petitioners asserted, in Paragraph 83 of their filing, that they had not learned of the checks until "approximately a year" after their mother's death, when the respondent had produced the checks in discovery during probate litigation in Florida concerning their mother's estate.

         The trial court issued its adjudicatory order on December 4, 2017. In its order, the court concluded that the respondent was not a credible witness, and thus that there was no evidence that his mother had agreed to pay him for monies he spent on the property or authorized him to sign the checks at issue. In addition, the court found that, based on the credible evidence before it, the checks were written after the parties' mother had died and the respondent's authority under the power of attorney had ended. The court also found that the petitioners learned of the checks "well over a year" after March 2012, during the discovery process in separate litigation. Applying principles of equity, the trial court ordered that the proceeds from the sale of the home be distributed to the mother's children, excluding the respondent, according to their respective ownership percentages.

         Following this order, both the respondent and the petitioners filed motions to reconsider. Both motions challenged the analysis conducted by the trial court in its initial order. The respondent did not pursue his statute of limitations defense in his motion to reconsider. The trial court ruled on these motions in an order dated February 20, 2018. The court granted the respondent's motion to the extent that it contained arguments raised by the petitioners in their motion for reconsideration that was also granted. At the request of the petitioners, the court made a finding of conversion, determining that the respondent had "wrongfully converted the funds of his mother's estate when he wrote and delivered the two checks." The court declined to rule on the petitioners' claims for fraudulent misrepresentation and breach of fiduciary duty. Accepting both parties' arguments that there was insufficient evidence to uphold the court's original instructions on how the property's proceeds should be distributed, the court allowed the respondent to receive his ownership share. However, this share was to be applied against the amount the court found that the respondent owed the estate - i.e., the total of the checks. On the same day that it issued this order, the trial court also granted as a finding of fact the request contained in Paragraph 83 of the petitioners' proposed findings and rulings.

         On March 1, 2018, nearly two years after the petition in this case was filed and following the trial court's ruling on the parties' initial motions to reconsider, the respondent filed a second motion to reconsider in which he pursued, for the first time, the statute of limitations defense originally raised in his answer. The trial court denied the respondent's motion, concluding that, by actively participating in litigation and failing to present his limitations defense until a post-trial motion to reconsider, the respondent had forfeited his right to the defense. This appeal followed. [2]

         II

         We have not previously had occasion to consider whether a party, through its conduct in the trial court, may abandon its ability to pursue an affirmative defense pleaded in its answer. While generally we review a trial court's denial of a motion to reconsider for an unsustainable exercise of discretion, see Broom v. Continental Cas. Co., 152 N.H. 749, 752 (2005), the issue presented by this appeal more closely resembles that of a trial court's finding of waiver, which we review for clear error, see So. Willow Properties v. Burlington Coat Factory of N.H., 159 N.H. 494, 499 (2009) ("Waiver is a question of fact and we will not overturn the trial judge's determination unless clearly erroneous."). We observe that the trial court, in denying the respondent's motion for reconsideration, concluded that he had "forfeited" his limitations defense. We have recognized in the past that the terms "waiver" and "forfeiture" are not synonymous. See State v. Richard, 160 N.H. 780, 786 (2010) ("Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment of a known right." (quotation omitted)). However, our precedents reflect that we have traditionally included in our analysis of waiver evidence of a party's conduct that justifies "an inference of a relinquishment" of a right, even if not explicitly expressed. So. Willow Properties, 159 N.H. at 499; N. Country Envtl. Servs. v. Town of Bethlehem, 146 N.H. 348, 354 (2001). Thus, we apply clear error review to the circumstances of this appeal, while acknowledging that "where a litigant's ...


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