Judith Tompson v. Michael Feniger, Esq. & a. ( 2017 )

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2017-0356, Judith Tompson v. Michael Feniger,
Esq. & a., the court on December 21, 2017, issued the following
order:
The plaintiff’s motion “for leave to add and file documents to case file for
review” is denied. The plaintiff filed her brief and appendix on September 29,
2017. Although the plaintiff appeals, in part, the dismissal of her complaint for
failure to state a claim upon which relief may be granted, she did not include a
copy of the complaint or her objection to the motion to dismiss in her appendix.
Nor did the plaintiff, in her brief, summarize the complaint, challenge the trial
court’s characterizations of it or of the arguments in her objection, or otherwise
specifically cite the complaint in support of her factual assertions. Sup. Ct. R.
16(3)(d) (requiring appealing party’s brief to include concise statement of
material facts with appropriate references to appendix or record); cf. Mahmoud
v. Irving Oil Corp., 155 N.H. 405, 406-07 (2007) (striking appealing party’s brief
and dismissing appeal for failure to comply with Rule 16). The defendants filed
a memorandum of law in lieu of a brief, see Sup. Ct. R. 16(4)(b), by first class
mail postmarked October 17, 2017, certifying that they served the plaintiff with
copies of the memorandum by first class mail. We received and docketed the
memorandum on October 19, 2017. In it, the defendants argue, in part, that
the plaintiff failed to carry her burden to provide a record that is sufficient to
decide her issues and demonstrate that she raised them in the trial court
because she did not include the relevant pleadings in her appendix. See Bean
v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). On October 20, 2017, by
first class mail postmarked October 19, the plaintiff filed her motion for leave to
supplement the record on appeal with copies of her complaint and objection to
the motion to dismiss, claiming, incorrectly, that the defendants had not yet
filed a brief or memorandum of law.
It is the plaintiff’s burden, as the appealing party, to provide a record on
appeal that is sufficient to decide the issues she is raising and to demonstrate
that she raised those issues in the trial court. Id.; Sup. Ct. R. 13(2). Pursuant
to Rule 13(3), the plaintiff was obligated to file her appendix no later than when
she filed her brief. The plaintiff has not established the requisite good cause to
suspend Rule 13(3). See Sup. Ct. R. 1. As noted above, at no point in her brief
did the plaintiff summarize her complaint or otherwise challenge the accuracy
of the trial court’s summaries of her complaint or objection. Moreover, we
agree with the defendants that they would be prejudiced by allowing the
plaintiff to submit the complaint and objection after they have already filed
their memorandum of law. Cf. Panas v. Harakis & K-Mart Corp., 129 N.H. 591,
617-18 (1987) (declining to address argument raised for the first time in reply
brief due in part to opposing party’s inability to respond and unacceptability of
allowing submission of additional briefs after briefing schedule has closed).
Accordingly, in reviewing the trial court’s order granting the motion to dismiss,
we will assume that its characterizations of the factual allegations and legal
claims articulated in the complaint and the arguments raised in the plaintiff’s
objection are accurate. Cf. Bean, 151 N.H. at 250 (because appealing party
bears burden to provide sufficient record, court assumes, absent a transcript,
that trial court’s ruling is supported by the evidence).
Having considered the plaintiff’s brief, the defendants’ memorandum of
law, and the portions of the record that the plaintiff has provided, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). The
plaintiff, Judith Tompson, appeals orders of the Superior Court (Anderson, J.)
denying her motion for recusal, and dismissing her complaint against the
defendants, Michael Feniger, Esq. and The Law Office of Feniger & Uliasz, LLP,
for failure to state a claim upon which relief may be granted. We affirm.
At the outset, we reject the plaintiff’s argument that the trial court was
obligated to recuse itself. Based upon our review of the record provided on
appeal, we cannot say either that a reasonable person would have questioned
Judge Anderson’s impartiality, or that any factor that would have per se
disqualified Judge Anderson was present. See State v. Bader, 148 N.H. 265,
268-71 (2002). The mere fact that Judge Anderson ruled against the plaintiff
in prior litigation does not establish judicial bias. See id. at 271.
This case arises out of prior litigation brought by Lancelot Court
Condominium Association (association) against the plaintiff over unpaid
condominium association fees. See Lancelot Court Condo. Ass’n v. Tompson,
No. 2017-0117, 2017 WL 4770562 (N.H. Sept. 28, 2017); Lancelot Court
Condo. Ass’n v. Tompson, No. 2015-0252, 2016 WL 3475739 (N.H. April 29,
2016). Feniger is the attorney who represented the association in that
litigation. In her complaint, the plaintiff alleged that, during the course of
representing the association, Feniger filed three separate memoranda with the
registry of deeds pursuant to RSA 356-B:46, III (Supp. 2016), in order to
perfect liens created by the statute for unpaid condominium assessments, see
RSA 356-B:46, I (Supp. 2016). Although the statute required that the lien
memoranda specify “[t]he amount of unpaid assessments currently due or past
due together with the date when each fell due,” RSA 356-B:46, III(c), Feniger
did not itemize the amounts that the association claimed were due or specify
when those amounts became due. Instead, each lien memorandum he filed set
forth a single lump sum amount of unpaid assessments and attorney’s fees
that the association claimed as of the date of the memorandum. In its order
granting the motion to dismiss, however, the trial court observed that at no
point in her complaint did the plaintiff allege that the amounts asserted in the
lien memoranda were incorrect. Ultimately, the association prevailed in the
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underlying action, receiving $17,000 for unpaid condominium assessments
and approximately $43,000 in costs and attorney’s fees.
As summarized by the trial court, the plaintiff asserted the following
claims in six separate counts of her complaint:
(1) A claim for unfair and deceptive debt collection practices; (2) a
claim for the violation of the federal Fair Debt Collection Practices
Act; (3) a Fifth Amendment taking claim; (4) a claim captioned
“Memorandums were improperly created and filed by Attorney
Feniger”; (5) a negligence claim; and (6) a claim for, inter alia,
attorney misconduct.
In dismissing the first claim, the trial court reasoned that, to prevail under RSA
358-C:2 (2009), the plaintiff had to establish that Feniger acted in an unfair,
deceptive, or unreasonable manner, and that malice could not be inferred
merely from the filing of defective liens. Because the plaintiff did not allege
that the amounts asserted in the liens were incorrect, and because the alleged
defects only affected the association’s priority against other creditors, the trial
court concluded that the complaint failed to establish that Feniger acted in an
unfair, deceptive, or unreasonable manner. In dismissing the second claim,
the trial court concluded that it was time-barred under the Fair Debt Collection
Practices Act’s one-year statute of limitations, see 15 U.S.C. § 1692k(d) (2012),
because Feniger filed each lien memorandum more than one year prior to when
the plaintiff brought suit. As to the third claim, the trial court reasoned that
the plaintiff did not allege facts establishing that Feniger acted on behalf of a
governmental entity. As to the fourth count, the trial court reasoned that it did
not articulate a legal claim at all, but simply established that Feniger prepared
and filed the lien memoranda, and that, although the association sent the
plaintiff invoices and statements, it did not provide any formal demand letters
before filing the liens. With respect to the negligence claim, the trial court
reasoned that Feniger’s alleged failure to comply with 356-B:46, III could not
have harmed the plaintiff, but could only have harmed the association, and
that Feniger did not owe the plaintiff, his client’s adversary, a duty of care, see
MacMillan v. Scheffy, 147 N.H. 362, 365 (2001) (declining to impose duty of
care on an attorney to an adverse party). Finally, in dismissing the sixth claim,
in which the plaintiff asserted that by engaging in “dishonesty, fraud, deceit, or
misrepresentation,” Feniger committed professional misconduct, abuse of
process, or fraud, the trial court reasoned that any professional misconduct
claim was “more properly brought before the professional conduct committee,”
see N.H. Rules of Professional Conduct, Statement of Purpose (stating that the
Rules of Professional Conduct “are not designed to be a basis for civil liability”),
and that the plaintiff had alleged no facts establishing that Feniger had
engaged in attorney misconduct, fraud, or abuse of process.
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In her brief, the plaintiff makes numerous repeated claims that Feniger
“knowingly” created and recorded unperfected liens, that by doing so, he
harmed her, engaged in intentional misrepresentation and actionable
professional misconduct, and failed to satisfy RSA 356-B:46, III, and that such
conduct constituted unfair and deceptive debt collection practices under state
and federal law, negligence, fraud, and abuse of process. She has not,
however, adequately addressed the fundamental flaws in her legal theories
identified by the trial court in its well-reasoned order, or established why the
trial court erred in identifying such flaws. As the appealing party, the plaintiff
has the burden of demonstrating reversible error. Gallo v. Traina, 166 N.H.
737, 740 (2014). Based upon our review of the trial court’s well-reasoned
order, the plaintiff’s challenges to it, the relevant law, and the record submitted
on appeal, we conclude that the plaintiff has not demonstrated reversible error.
See id.Affirmed.
Dalianis, C.J., and Hicks, Lynn, Bassett, and Hantz Marconi, JJ.,
concurred.
Eileen Fox,
Clerk
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