Kukene v. Genualdo

749 A.2d 309, 145 N.H. 1, 2000 N.H. LEXIS 14
CourtSupreme Court of New Hampshire
DecidedMarch 21, 2000
DocketNo. 97-085
StatusPublished
Cited by28 cases

This text of 749 A.2d 309 (Kukene v. Genualdo) 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
Kukene v. Genualdo, 749 A.2d 309, 145 N.H. 1, 2000 N.H. LEXIS 14 (N.H. 2000).

Opinion

PER CURIAM.

The plaintiffs, John and Annette Kukene, appeal a Superior Court (Coffey, J.) award of attorney’s fees to the defendant, Jeanne M. Genualdo. We vacate in part, reverse in part, and remand. •

Annette Kukene and Jeanne Genualdo are sisters. In 1970, their father, Arthur Genualdo, conveyed to the plaintiffs a parcel of land from his. own larger tract of land. While developing their parcel, the plaintiffs also began regularly using and maintaining an abutting strip of their father’s.land. In 1993, the defendant inherited from her parents land that included the strip in question. The defendant subsequently requested a variance for her property, to which the plaintiffs objected at a public hearing, leading to a deterioration in relations. between.the parties.. After the defendant attempted to. prevent the plaintiffs .from using or maintaining the strip of lan,d,. the plaintiffs brought an action .to quiet title in 1994, claiming, adverse possession.

In response, the defendant erected a fence on the record property line. The plaintiffs sought a preliminary injunction to remove the fence: After a hearing, the court denied the request for injunctive relief, finding that the plaintiffs had not established a likelihood of success on the merits nor a threat of irreparable harm. In particular, the court found that a '1985 conveyance by Arthur to the plaintiffs of land comprisiiig a part of the disputed strip interrupted any continuous, adverse use of the land and prevented the plaintiffs from establishing that they had satisfied the twenty-year requirement for adverse possession.

In January 1995, the plaintiffs moved for summary judgment, which the Superior Court (Coffey, J.) denied, finding genuine issues of material fact in dispute. In March 1995, the defendant moved for judgment on the pleadings. The Superior Court (Gray, J.) denied the motion. Also in March 1995, the defendant moved for summary judgment. The Superior Court (Coffey, J.) denied the motion. The defendant again moved for summary judgment in January 1996, [3]*3after conducting depositions of the plaintiffs, arguing that the new evidence showed no genuine issues of material fact regarding any of the elements of adverse possession. The Superior Court (Coffey, J.), having previously ruled that genuine issues of material fact remained with regard to continuity and adversity, considered only whether the plaintiffs’ use was permissive. It found that the plaintiffs’ deposition testimony was ambiguous as to whether they used the land with Arthur’s permission. Concluding that “a genuine issue of material fact remain[ed] as to whether the plaintiffs’ use . . . was permissive,” the court denied the defendant’s motion.

The parties proceeded to a bench trial in May 1996. At the close of the plaintiffs’ case, the defendant moved to dismiss the action. The trial court granted the motion, finding that the plaintiffs had failed to establish that their use, inter alia, was adverse and nonpermissive. It subsequently awarded attorney’s fees to the defendant on the grounds that “the plaintiffs pursued this case to trial in bad faith and with vexatious motivations.” The plaintiffs appeal this award.

“In reviewing a superior court award of attorney’s fees, we apply an abuse of discretion standard, giving tremendous deference to the court’s decision. To constitute abuse, reversible on appeal, the discretion must have been exercised for reasons clearly untenable or to an extent clearly unreasonable to the prejudice of the objecting party. If there is some support in the record for the trial court’s determination, we will uphold it.” Glide v. Naess, 143 N.H. 172, 175, 722 A.2d 453, 455 (1998) (quotations, citations, and brackets omitted).

Attorney’s fees may be awarded “where litigation is instituted or unnecessarily prolonged through a party’s oppressive, vexatious, arbitrary, capricious or bad faith conduct ... [or to] those who are forced to litigate against an opponent whose position is patently unreasonable.” Clipper Affiliates v. Checovich, 138 N.H. 271, 278, 638 A.2d 791, 796 (1994) (quotations and citations omitted).

We turn first to the trial court’s finding of bad faith. A party pursues a claim in bad faith if the claim is frivolous. See King v. Mosher, 137 N.H. 453, 457, 629 A.2d 788, 791 (1993). A frivolous claim lacks “any reasonable basis in the facts provable by evidence, or any reasonable claim in the law as it is, or as it might arguably be held to be.” Id. (quotation omitted).

The trial court’s finding of bad faith was based largely upon the plaintiffs’ prosecution of their case with the same [4]*4evidence that the court previously found inadequate [at the preliminary injunction hearing]. While such a finding will not be appropriate in all cases, under the particular facts of this case, the evidence was so inadequate at the preliminary [injunction] hearing that it was in bad faith that the plaintiffs pursued this matter without proffering substantial additional evidence.

Thus, it appears that the trial court’s rationale for awarding attorney’s fees was that the plaintiffs continued to litigate after losing the preliminary injunction hearing.

Initially, we point out that a denial of a preliminary injunction is not by itself a determination that the underlying case is frivolous. Although a party seeking an injunction must show that it would likely succeed on the merits, injunctive relief is an equitable remedy, requiring the trial court to consider the circumstances of the case and balance the harm to each party if relief were granted. See UniFirst Corp. v. City of Nashua, 130 N.H. 11, 14-15, 533 A.2d 372, 374-75 (1987). “[A] preliminary injunction is a provisional remedy . . . that . . . preserve[s] the status quo pending a final determination of the case on the merits.” Davis v. Sponhauer, 574 N.E.2d 292, 302 (Ind. Ct. App. 1991). A denial of a preliminary injunction based on the failure to show a likelihood of success should not constitute a judgment that the underlying claim is frivolous, foreclosing a trial. Cf. id. Therefore, the defendant’s contention that the denial of the preliminary injunction gave the plaintiffs notice that their evidence was inadequate and that it would be in bad faith for them to proceed on the same evidence is without merit.

As stated, the trial court’s finding of bad faith was “based largely upon the plaintiffs’ prosecution of their case with the same evidence that the court previously found inadequate [at the preliminary injunction hearing].” (Emphasis added.) If the trial court’s sole rationale for finding bad faith was the plaintiffs’ continuation of their suit after being denied a preliminary injunction, it would have been incorrect. The record is unclear on this point.

The plaintiffs additionally contend that the trial court’s denial of the defendant’s motions for summary judgment precluded its subsequent finding that the plaintiffs pursued the litigation in bad faith. Under the facts of this case, we agree. We note, however, in doing so we are not adopting a rule that a denial of summary judgment

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Bluebook (online)
749 A.2d 309, 145 N.H. 1, 2000 N.H. LEXIS 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kukene-v-genualdo-nh-2000.