Key Bank v. Latshaw

633 A.2d 952, 137 N.H. 665, 1993 N.H. LEXIS 141
CourtSupreme Court of New Hampshire
DecidedNovember 10, 1993
DocketNo. 92-541
StatusPublished
Cited by3 cases

This text of 633 A.2d 952 (Key Bank v. Latshaw) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Key Bank v. Latshaw, 633 A.2d 952, 137 N.H. 665, 1993 N.H. LEXIS 141 (N.H. 1993).

Opinion

JOHNSON, J.

These two cases, consolidated on appeal by the defendants, involve the efforts of the plaintiff, Key Bank of Maine (bank), to collect a judgment of nearly three million dollars from defendant John H. Latshaw, Sr. In one case, Mr. Latshaw challenges the Superior Court’s (Barry, J.) order requiring him to make periodic payments to the bank of $10,000 per month, arguing that the court heard no evidence to support it. The trial court’s fact-finding mission was hampered by Mr. Latshaw’s extensive invocation of the privilege against self-incrimination. We reverse the court’s periodic payment order and remand for a new hearing.

In the other case, which stems from the bank’s petition to set aside an allegedly fraudulent transfer, Mr. Latshaw and his wife, Muriel Latshaw, contest the Superior Court’s (Barry, J.) order compelling them to answer deposition questions regarding their past and present financial conditions. The Latshaws justify their silence on the grounds that answering would violate both their privilege against self-incrimination and Mr. Latshaw’s marital privilege. We affirm the court’s order with respect to Mr. Latshaw’s invocation of the marital privilege, and affirm in part and reverse in part with respect to the Latshaws’ invocation of the privilege against self-incrimination.

In 1985, Mr. Latshaw guaranteed a promissory note held by the bank and signed by a third party. In June 1990, during negotiations to extend the note, Mr. Latshaw filed a personal financial statement with the bank indicating a net worth of over nine million dollars. Listed as one of his assets was his home at 128 Lille Road in Nashua. Three months later, the bank extended the promissory note. Then on October 4,1990, Mr. Latshaw quitclaimed his interest in the Nashua home to Mrs. Latshaw. The promissory note was further extended in December 1990 and thereafter went into default.

The bank obtained judgment against Mr. Latshaw for the value of the note and, after its initial collection efforts proved fruitless, moved for an order requiring him to make periodic payments. At a deposition, and later at a hearing on the motion, Mr. Latshaw refused to provide any information concerning his financial condition, invoking his State and federal privileges against self-incrimination. The court made no findings concerning Mr. Latshaw’s assets, but ordered him to pay the bank $10,000 per month. Upon denying Mr. Latshaw’s motion for reconsideration, the court explained that “[t]he only information before this Court with regard to the defendant’s financial condition is his alleged net worth in excess of Twelve Million Dollars.” Mr. Latshaw appealed.

[668]*668Meanwhile, in a separate action against both Latshaws, the bank had petitioned the superior court to set aside as fraudulent Mr. Latshaw’s transfer of the Nashua home to his wife, alleging that Mr. Latshaw was insolvent at the time of transfer. The bank deposed Mrs. Latshaw, but she also invoked her State and federal privileges against self-incrimination. In addition, Mr. Latshaw claimed the marital privilege to prevent Mrs. Latshaw from testifying. The bank then moved to compel the Latshaws to answer its deposition questions, and the court granted the motion with respect to most of the questions posed. The Latshaws appealed.

As a preliminary matter, the Latshaws argue that the superior court erroneously ordered Mr. Latshaw, instead of just Mrs. Latshaw, to answer the questions. The Latshaws assert that the bank deposed Mr. Latshaw in the suit against him on the promissory note, but not in the action to set aside the transfer. This issue, however, does not appear in the Latshaws’ notice of appeal. We therefore do not consider it. See Appeal of Toczko, 136 N.H. 480, 487, 618 A.2d 800, 804-05 (1992).

We first address whether the superior court’s order compelling the Latshaws to answer certain deposition questions violated their State and federal privileges against self-incrimination. A portion of the questions reads as follows. Mr. Latshaw was asked:

1. “Who owns that property [where you live at 128 Lille Road], sir?”
2. “Do you have an interest in Juniper Associates Realty Trust?”
3. “Are you connected in any way with Juniper Associates Realty Trust?”
4. “Did you have any ownership interest in Servomation at the time that you left?”
5. “What is ‘Security Deposit?”’
6. “Does some entity entitled ‘Security Deposit’ have a mortgage interest in the Fairfield Gardens?”
7. “Does ‘Security Deposit’ have a mortgage interest in the Madison Apartments?”
8. “Is the John H. Latshaw 1982 Irrevocable Trust still in existence?”
9. “What are the amounts of the loans against the insurance policies that are within the John H. Latshaw 1982 Irrevocable Trust?”
[669]*66910. “What is your interest in the Muriel L. Latshaw 1987 Irrevocable Insurance Trust?”
11. “What is your interest in the Muriel L. Latshaw 1987 Irrevocable Trust #2?”
12. “Let me show you a document that’s been marked Exhibit No. 10 [1989 Federal Income Tax Return for Mr. and Mrs. Latshaw], and ask you if you can identify that?”

The bank also asked Mr. Latshaw about his interest in several real estate properties and whether certain entities held mortgages on these properties.

Mrs. Latshaw was compelled to answer these questions:

1. “Did you receive any income under any trusts or beneficial interests since 1988?”
2. “Can you tell me whether you have any other sources of income or sources of money available to you from 1988 through the present?”
3. “Have you seen Exhibit 1 [quit claim deed] before?”
4. “At any time from October 4, 1990 through today, have you been made aware, through any source other than your husband, that your husband executed a quit claim deed transferring all of his interest in 128 Lille Road to you?”
5. “Do you know who is the title owner of the property at 128 Lille Road in Nashua today?”
6. “Do you have any beneficial interest in the Seacoast Realty Trust?”
7. “Do you have any beneficial interest in the Hampton Inn?”
8. “Since October 4, 1990, have you given any money or property or anything of value to your husband?”

We address the Latshaws’ State constitutional claim first. See State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983). Part I, article 15 of the New Hampshire Constitution provides that “[n]o subject shall... be compelled to accuse or furnish evidence against himself.” For a witness to invoke this privilege, “it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure might result.” State v. Wheeler, 128 N.H.

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Related

State v. Pelletier
818 A.2d 292 (Supreme Court of New Hampshire, 2003)
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712 A.2d 623 (Supreme Court of New Hampshire, 1998)
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692 A.2d 505 (Supreme Court of New Hampshire, 1997)

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Bluebook (online)
633 A.2d 952, 137 N.H. 665, 1993 N.H. LEXIS 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/key-bank-v-latshaw-nh-1993.