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Doyon v. Porter

United States District Court, D. New Hampshire

November 13, 2019

David W. Doyon
v.
Joel R. Porter, Jr.

          ORDER

          JOSEPH A. DICLERICO, JR., UNITED STATES DISTRICT JUDGE

         David Doyon filed this action against his stepbrother, Joel Porter Jr. (“Porter Jr.”), alleging intentional interference with an inheritance (Count I) and unjust enrichment (Count II). Porter Jr. filed a motion for summary judgment as to both counts (doc. no. 16). Doyon opposes summary judgment, and he filed a cross-motion for summary judgment in his favor as to Count I (doc. no. 21). Porter Jr. moved to strike Doyon's cross-motion for summary judgment (doc. no. G), which Doyon also opposes.

         Standard of Review

         Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Faiella v. Fed. Nat'l Mortg. Assoc., 928 F.3d 141, 145 (1st Cir. 2019). “A genuine issue of material fact only exists if a reasonable factfinder . . . could resolve the dispute in that party's favor.” Town of Westport v. Monsanto Co., 877 F.3d 58, 64-65 (1st Cir. 2017) (internal quotation marks and citation omitted). When the parties file cross-motions for summary judgment, the court views “each motion separately, drawing all inferences in favor of the nonmoving party.” Giguere v. Port Res. Inc., 927 F.3d 43, 47 (1st Cir. 2019).

         Under the District of New Hampshire's Local Rules, “[a] memorandum in support of a summary judgment motion shall incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the moving party contends there is no genuine issue to be tried.” LR 56.1(a). Similarly, “[a] memorandum in opposition to a summary judgment motion shall incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the adverse party contends a genuine dispute exists so as to require a trial. All properly supported material facts set forth in the moving party's factual statement may be deemed admitted unless properly opposed by the adverse party.” LR 56.1(b).

         In his memorandum in support of his motion for summary judgment, Porter Jr. complied with Local Rule 56.1(a) by providing a statement of material facts supported by appropriate record citations. In his cross-motion for summary judgment/opposition to Porter Jr.'s summary judgment motion, instead of filing a statement of material facts, Doyon accepted “as true the factual assertions contained in” paragraphs 1 through 21, 24 through 29, and 31 through 48 of Porter Jr.'s statement of facts. Doc. 22 at 1. Doyon opposed paragraphs 22, 23, and 30 of Porter Jr.'s statement of facts on the ground that they contained legal argument. Doyon filed no additional evidentiary material of any kind.

         Under these circumstances, the court adopts Porter Jr.'s statement of facts, noting those paragraphs to which Doyon objects:

1. Plaintiff, David Doyon, (hereinafter "David") is a citizen and resident of the state of Arizona, residing at 10311 West Monaco Blvd., Arizona City, Arizona 85123. Complaint ¶ 1. David is the son and only child of Bernadette Porter, (hereinafter "Bernadette"), and stepbrother to Joel Porter, Sr., (hereinafter "Joel, Sr."). Id. at ¶ 2.
2. Defendant, Joel R. Porter, Jr., (hereinafter "Joel, Jr.") is a citizen and resident of the state of California, residing at 25 Sean Court, Roseville, California 95678, and is son to Joel, Sr. and stepson to Bernadette. Id. at ¶ 3.
3. Joel, Sr. and Bernadette were married for approximately thirty-two (32) years, and mutually contributed to the accumulation of checking accounts, savings accounts, money market accounts, IRA's, investment accounts and life insurance. Answer ¶ 11.
4. Joel, Sr. was the sole owner of real estate in Raymond, New Hampshire as well as real estate in Epping, New Hampshire. Id. at ¶ 12. Bernadette was the sole owner of real estate located at 1257 Smyth Road, in Hooksett, New Hampshire that was occupied by both Joel, Sr. and Bernadette. Id. at ¶ 13.
5. Joel, Sr. and Bernadette jointly owned a property in Port St. Charlotte, Florida, and jointly held financial accounts, such as checking and savings accounts, and money-market accounts. Complaint ¶ 14; Deposition of Attorney Sheehan p. 17 (hereinafter "Sheehan Deposition"). Ex. A.
6. The financial assets, personal tangible property, and real estate properties in Raymond, Hooksett, and Epping, New Hampshire, and the Florida property consist of the majority of the marital assets. Complaint ¶ 15; Sheehan Deposition p. 13-17, 25.
7. On March 15, 2018, Bernadette and Joel, Sr. consulted with Attorney Virginia Sheehan at her office at 2 Delta Drive, Suite 303, Concord, New Hampshire for the purpose of preparing an estate plan. Complaint ¶ 16; Sheehan Deposition p. 5. Initially, the meeting was only scheduled by David for Bernadette due to an upcoming surgery, but both Bernadette and Joel, Sr. attended. Id. at 9-10.
8. During their meeting with Attorney Sheehan, Joel, Sr. and Bernadette discussed how to draft the distribution of their assets, alongside the questionnaire Attorney Sheehan sent to Bernadette to fill out as best she could. Complaint ¶ 17; Sheehan Deposition p. 11.
9. Attorney Sheehan testified that she had tried to engage both Bernadette and Joel, Sr. in the conversation of their assets, as Bernadette did most of the talking and Joel, Sr. was fairly quiet, which Attorney Sheehan expressed as concerning but was common. Id. at 21.
10. Per this conversation on March 15, 2018, upon Joel, Sr.'s death, the Raymond and Epping Property would pass to Joel, Jr. and the Hookset property would pass to David, reserving a life estate to Joel, Sr., if he survived Bernadette. Complaint ¶ 17a-b; Sheehan Deposition p. 26. Further, upon the death of Joel, Sr. or Bernadette, the assets would pass to the survivor of the two of them, and then divided into equal shares between the parties, aside from some tangibles and the real estate, when the survivor died. Complaint ¶ 17c-d; Sheehan Deposition p. 19, 71.[1]
11. While Joel, Sr., and Bernadette expressed their wishes during the March 15, 2018 meeting with Attorney Sheehan, Joel, Sr. and Bernadette were explicitly made aware that upon the death of one spouse, "The surviving spouse can change their will to change the disposition, but the survivor cannot affect the New Hampshire real estate." Id. at 18.
12. Attorney Sheehan subsequently began drafting the estate planning documents for Joel, Sr. and Bernadette, and did not set up a second appointment in order to give them time to review the drafts she was proposing. Id. at 22.
13. On March 27, 2018, Attorney Sheehan sent a letter to Joel, Sr. and Bernadette enclosing, in part, their draft Wills. Id. at 27. In this letter, Attorney Sheehan clearly explained that the Wills contained an "Article Nine", which stated that either Bernadette or Joel, Sr. was free to modify their Will at any time. Id. at 27-28.
14. Once she sent draft estate planning documents to Joel, Sr. and Bernadette, Attorney Sheehan reached out to David to inquire as to if Joel, Sr. and Bernadette had read over the documents. Id. at 84.
15. On April 1, 2018, Joel, Jr. and his wife, Martina, travelled from their home in California and stayed in New Hampshire with Joel, Sr. and Bernadette to provide assistance and care to Joel, Sr. and Bernadette during and following Bernadette's surgery. Complaint ¶ 18; Defendant's Affidavit in Support of Defendant's Motion for Summary Judgment ¶ 3 (hereinafter "Joel, Jr. Affidavit"). Ex. E.
16. On April 2, 2018 Bernadette and Joel, Sr. met with Attorney Sheehan to review and execute their estate planning documents. Complaint ΒΆ 20. Attorney Sheehan was unaware of any prior estate planning documents for either Joel, Sr. or Bernadette. Sheehan Deposition p. 14. Joel, Sr. ...

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