United States District Court, D. New Hampshire
David W. Doyon
Joel R. Porter, Jr.
A. DICLERICO, JR., UNITED STATES DISTRICT JUDGE
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.
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).
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).
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.
these circumstances, the court adopts Porter Jr.'s
statement of facts, noting those paragraphs to which Doyon
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,
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
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 ¶ 20. Attorney Sheehan was unaware
of any prior estate planning documents for either Joel, Sr.
or Bernadette. Sheehan Deposition p. 14. Joel, Sr. ...