Doyon v. Porter

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David W. Doyon
v. Civil No. 18-cv-1128-JD
Opinion No. 2019 DNH 098
Joel R. Porter, Jr.
O R D E R
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 to dismiss Count I for failure to
state a claim upon which relief can be granted. Porter Jr.
argues that New Hampshire does not recognize the tort of
intentional interference with an inheritance. Doyon opposes
dismissal.
Standard of Review
Porter Jr. answered the complaint before filing the motion
to dismiss. Accordingly, the court will consider the motion
under the standard for judgment on the pleadings. See, e.g.,
Weeks v. Five Bros. Mortg. Servs. & Securing, Inc., 2014 WL
1379335, at *3 (D.N.H. Apr. 9, 2014).
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A motion for a judgment on the pleadings is evaluated under
the same standard as a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6). Diaz-Nieves v. United States, 858
F.3d 678, 689 (1st Cir. 2017); Grajales v. P.R. Ports Auth., 682
F.3d 40, 44 (1st Cir. 2012). Judgment on the pleadings,
therefore, is appropriate if the facts from the pleadings, taken
in the light most favorable to the nonmovant, fail to allege a
plausible entitlement to relief. Perez-Acevedo v. Rivero-
Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555-58 (2007)).
Background
As noted above, Doyon and Porter Jr. are stepbrothers.
Doyon’s mother, Bernadette Porter (“Bernadette”), was married to
Porter Jr.’s father, Joel Porter Sr. (“Porter Sr.”). Doyon
lives in Arizona, and Porter Jr. lives in California.
On March 15, 2018, Bernadette and Porter Sr. met with
Attorney Virginia Sheehan in Concord, New Hampshire, to prepare
an estate plan. At that time, Bernadette and Porter Sr. had
cash and financial assets worth $1,063,200 (the “Financial
Assets”) and joint ownership of property located in Port
Charlotte, Florida (the “Florida Property”). Porter Sr., alone,
owned property in Raymond and Epping, New Hampshire (the
“Raymond Property” and the “Epping Property”). Bernadette,
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alone, owned property in Hooksett, New Hampshire (the “Hooksett
Property”). Bernadette and Porter Sr. resided together at the
Hooksett Property. This property together comprised Bernadette
and Porter Sr.’s marital estate.
According to Doyon’s allegations, on March 15, 2018,
Bernadette and Porter Sr. agreed on a “mutual and reciprocal
scheme of distribution” of their marital estate. Doc. 1
(“Compl.”) ¶ 17. The plan was as follows: (1) upon Porter
Sr.’s death, the Raymond and Epping Properties would pass to his
son, Porter Jr.; (2) upon Bernadette’s death, the Hooksett
Property would pass to her son, Doyon, but Porter Sr. would
retain a life estate in the property if he survived Bernadette;
(3) the remaining marital assets (i.e., the Financial Assets and
the Florida Property) would pass to the surviving spouse; and
(4) upon the death of the surviving spouse, the Financial Assets
and the Florida Property would be divided equally between Porter
Jr. and Doyon. However, Porter Sr. and Bernadette did not sign
documents effectuating the entire inheritance plan at that time.
Sometime between March 20, 2018, and April 2, 2018, Porter
Jr. and his wife Martina Porter began residing with Porter Sr.
and Bernadette in Hooksett. On April 2, 2018, Bernadette,
Porter Sr., Porter Jr., and Martina Porter met with Attorney
Sheehan to review and execute the documents to effectuate the
inheritance plan. Porter Jr. and Martina were asked to leave
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while Porter Sr. and Bernadette reviewed and signed the
documents.
Attorney Sheehan told the group that Bernadette’s and
Porter Sr.’s living wills had been executed and that Bernadette
had executed her will. Porter Sr., however, was “having some
difficulty by the time [Attorney Sheehan] sought to have him
execute his will.” Compl. ¶ 20. Because they had covered a lot
of material, Attorney Sheehan felt that Porter Sr. needed to
rest and come back at another time to execute his will.
Porter Jr. agreed to call Attorney Sheehan to schedule a
follow up appointment for Porter Sr. Porter Jr., however, did
not schedule a follow up appointment, although Attorney Sheehan
reached out to Porter Jr. on several occasions.
Bernadette died on April 19, 2018, due to complications
from surgery. Porter Jr. and Martina continued to live with
Porter Sr. in Hooksett while deciding whether Porter Sr. should
relocate to California to live with them.
Bernadette had appointed Porter Sr. as her executor in her
will, with Porter Jr. and Doyon to serve as alternates. Porter
Jr., Doyon, and Attorney Sheehan determined that Porter Jr. and
Doyon should serve as co-executors, and a New Hampshire Probate
Court approved them as co-executors on May 17, 2018.
Around April 25, 2018, Porter Jr., with Doyon’s assistance,
began transferring title of Bernadette’s sole accounts, and the
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joint accounts, to Porter Sr. solely. On May 11, 2018, the
Florida Property was conveyed to Porter Jr. and Porter Sr. as
joint tenants in common with rights of survivorship.
On August 18, 2018, Porter Sr. died. Doyon told Porter Jr.
that he would travel to New Hampshire to discuss how to
effectuate the inheritance plan. After Porter Sr.’s death,
Porter Jr. held a yard sale disposing of “valuable tangible
personal property” that had been the joint property of Porter
Sr. and Bernadette prior to her death. Compl. ¶ 43. Doyon
arrived in New Hampshire to find the Hooksett Property vacant,
with personal documents and financial records belonging to
Porter Sr. and Bernadette missing.
Discussion
Porter Jr. moves to dismiss Count I, intentional
interference with an inheritance, on the ground that it is not a
tort recognized in New Hampshire. Doyon opposes dismissal,
asserting that New Hampshire would recognize the tort and that
many other states have found that the claim is viable. Porter
Jr. did not file a reply.
The New Hampshire Supreme Court has not addressed whether
New Hampshire recognizes the tort of intentional interference
with inheritance or gift. The court is “obliged” to provide its
“‘best guess’ as to open questions of state law when necessary.”
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Noonan v. Staples, Inc., 556 F.3d 20, 30 (1st Cir. 2009); see
also Chamberlin v. 101 Realty, Inc., 626 F. Supp. 865, 868-69
(D.N.H. 1985) (concluding that the New Hampshire Supreme Court
would recognize the tort of intentional infliction of emotional
distress despite the “paucity of New Hampshire case law
discussing the tort . . . .”).
To make its “best guess,” the court “may look to ‘analogous
decisions, considered dicta, scholarly works, and any other
reliable data tending convincingly to show how the [state’s
highest court] would decide the issue at hand.” Lawless v.
Steward Health Care Sys., LLC, 894 F.3d 9, 21 (1st Cir. 2018)
(quoting N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 38
(1st Cir. 2001)); see also In re Montreal, Maine & Atl. Railway,
Ltd., 888 F.3d 1, 7 (1st Cir. 2018); Rodriguez-Suris v.
Montesinos, 123 F.3d 10, 13 (1st Cir. 1997) (“Where a
jurisdiction’s highest court has not spoken on a precise issue
of law, [the court] look[s] to ‘analogous state court decisions,
persuasive adjudications by courts of sister states, learned
treatises, and public policy considerations identified in state
decisional law’ in order to make an ‘informed prophecy’ of how
the state court would rule on the precise issue.”). Federal
courts, however, should avoid extending state law beyond its
“well-marked boundaries.” Braga v. Genlyte Grp., 420 F.3d 35,
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42 (1st Cir. 2005); see also RFF Family P’Ship, LP v. Ross, 814
F.3d 520, 535 (1st Cir. 2016).
Porter Jr. relies primarily on a case from the District of
Massachusetts, Torosian v. Garabedian, which dismissed an
intentional interference with inheritance claim on the ground
that it is not a recognized tort in New Hampshire. 206 F. Supp.
3d 679, 682 (D. Mass 2016). In dismissing the claim, the court
reasoned that “[i]ntentional interference with inheritance or
gift is not a commonly-recognized tort. In fact, many states
have yet to consider the tort at all, including New Hampshire.”
Id. Although it is true that no on-point decision from the New
Hampshire Supreme Court recognizes the tort of intentional
interference with inheritance or gift, the United States Supreme
Court found, in 2006, that it is, in fact, “widely recognized.”
Marshall v. Marshall, 547 U.S 293, 312 (2006); see also Umsted
v. Umsted, 446 F.3d 17, 20 (1st Cir. 2006) (“[A]t least 23
states have recognized some form of the tort . . . .”).
Moreover, twenty-five years before the Supreme Court’s
observation in Marshall, the Supreme Judicial Court of Maine
noted that “with a frequency that approaches a general rule of
law, courts have recognized an independent action for the
wrongful interference with an intended bequest.” Cyr v. Cote,
396 A.2d 1013, 1018 (Me. 1979)). Likewise, the tort is
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recognized in the Restatement (Second) of Torts § 774B, which
also notes its widespread recognition.
New Hampshire generally follows the Restatement (Second) of
Torts in actions for tortious interference, which is expressly
recognized in New Hampshire in the context of interference with
contractual relations. See Nat’l Employment Serv. Corp. v.
Olsten Staffing Servs., Inc., 145 N.H. 158, 162 (2000) (“We have
previously applied the Restatement (Second) of Torts to actions
for tortious interference with contractual relations.”); see
also Morancy v. Morancy, 134 N.H. 493, 495-96 (1991) (“The tort
of intentional infliction of emotional distress is widely
recognized in other States, see Restatement (Second) of Torts
§ 46 . . . , and we now recognize the tort in this State.”).
Indeed, intentional interference with an inheritance or gift is
not a significant departure from the tort of intentional
interference with a contractual relationship, and the New
Hampshire Supreme Court has expressed a willingness to adopt a
cause of action where it bears a close relationship to another,
already-recognized cause of action. See Morancy, 134 N.H. at
496 (“Having previously recognized the tort of negligent
infliction of emotional distress, there is no logical reason why
we should not now recognize the tort of intentional infliction
of emotional distress.”); Restatement (Second) of Torts § 774B
(stating that interference with inheritance is “an extension to
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a type of noncontractual relation of the principle found in the
liability for intentional interference with prospective
contracts . . . .”).
Other than pointing to Torosian, which, as explained above,
does not provide a persuasive assessment of the tort’s
recognition, Porter Jr. has not directed the court toward any
logical reason, public policy, or rule that would contraindicate
New Hampshire’s recognition of the tort under the circumstances
alleged by Doyon. Cf. Kassel v. Gannett Co., Inc., 875 F.2d
935, 949 (1st Cir. 1989) (declining to adopt proposed
interpretation of New Hampshire law because public policy and a
“long-held rule” counseled otherwise). To be sure, courts have
found that the tort should not be recognized in circumstances
where an adequate remedy is available in probate court or
through a statutory scheme. See Umsted, 446 F.3d at 21-22.
Porter Jr. does not identify any statutory scheme that Doyon
could have used to bring his claims, and he does not contest
Doyon’s assertion that the probate court does not provide a
remedy for this claim.
Lastly, New Hampshire recognizes unjust enrichment with
respect to fraud in acquiring a share of decedent’s estate. See
Patey v. Peaslee, 101 N.H. 26, 28 (1957). Unjust enrichment,
which sounds in equity and provides remedies of constructive
trust and restitution, however, does not undercut the
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intentional interference tort, which sounds in law and provides
a damages remedy. See id.; Axenics, Inc. v. Turner Const. Co.,
164 N.H. 659, 669-70 (2013) (“Unjust enrichment is an equitable
remedy . . . .”); Demetracopoulos v. Wilson, 138 N.H. 371, 376-
77 (1994) (explaining the damages available for intentional
interference with contractual relations and citing Restatement
(Second) of Torts § 774A(1)(c)). Therefore, intentional
interference with inheritance complements unjust enrichment, it
does not displace it. Restatement (Third) of Torts: Liability
for Economic Harm § 18 comment. a.1 Further, New Hampshire
recognizes both intentional interference and unjust enrichment
causes of action in the contractual relations context. See
Singer Asset Fin. Co., LLC v. Wyner, 156 N.H. 468, 477-78
(2007).2
Therefore, the court finds that New Hampshire would
recognize the tort of intentional interference with an
inheritance.3
1 Tentative Draft No. 3 (Mar. 7, 2018).
2 However, as Doyon observes in his response, this does not
mean that he can necessarily recover under both theories.
Rather, the court finds only that the New Hampshire Supreme
Court’s recognition of an unjust enrichment cause of action does
not proscribe its recognition of intentional interference with
inheritance.
3 In his motion for judgment on the pleadings, Porter Jr.
did not challenge whether Doyon’s claim, if recognized, would
meet any particular formulation of intentional interference with
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Conclusion
For the foregoing reasons, Porter Jr.’s motion to dismiss
(doc. no. 11) is denied.
SO ORDERED.
__________________________
Joseph A. DiClerico, Jr.
United States District Judge
June 25, 2019
cc: Marla Bellerive Matthews, Esq.
Jan P. Myskowski, Esq.
Robert M. Shepard, Esq.
Tanya L. Spony, Esq.
an inheritance. The court does not here consider the merits of
the claims but only holds that the New Hampshire Supreme Court
would recognize the tort here.
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