McGregor v. Friedrichs, Esq.

• Court: District Court, D. New Hampshire
• Decided: September 22, 1999
• Docket: CV-98124-M
• Status: Published

Opinion

McGregor v. Friedrichs, Esq. CV-98124-M 09/22/99 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Douglas McGregor and Karen McGregor, Plaintiffs

v. Civil No. 98-124-M

James J. Friedrichs, Esg., Defendant

ORDER ON MOTION IN LIMINE

Plaintiffs' position on damages is not only confusing, but

their memorandum is remarkable in that it contains no citations

of legal authority to support their position. "It is well

settled that issues are deemed waived when 'adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation.'" United States v. Fulmer, 108 F.3d 1486, 1495

(1st Cir. 1997) quoting United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990) ("It is not enough merely to mention a possible

argument in the most skeletal way, leaving the court to do

counsel's work . . . .").

Legal Fees

Defendant's motion in limine is granted as to plaintiffs'

claim for attorneys' fees and recovery of other costs of

litigation not specifically allowed by law to prevailing parties. Plaintiffs have made no supportable argument at all that some

cognizable legal theory (statute, rule, common law) supports

their claim for attorneys' fees or other costs of litigation, and

there does not appear to be any obvious legal basis for such a

claim. Accordingly, the usual rule applies and the parties must

bear their own legal fees and costs (except of course costs

allowed by rule to prevailing parties). Plaintiffs are precluded

from presenting to the jury evidence related to damages in the

nature of legal fees or costs incurred in bringing this tort

action.

Damages

Defendant's motion in limine is denied, but without

prejudice to interposing an appropriate objection at trial when

the evidentiary context is clear.

To the extent plaintiffs seem to believe that they may

recover damages for title defects in excess of reasonable costs

to cure those defects, they are probably wrong. Again plaintiffs

cite no legal authority to support their position (which seems to

be that they are entitled to multiple recoveries). Defendant, on

the other hand, seems to wrongly presuppose that the driveway

easement issue will necessarily be resolved, and, that the cost

of resolving the issue as well as the resolution itself are

2 undisputable. It is far more likely that the finders of fact

will have to hear evidence and determine the cost of remedying

the defect if the defect is not in fact remedied before trial.

In any event. New Hampshire's law of damages applicable to

cases such as this seems reasonably straightforward. With regard

to the damages issues raised by defendant's motion in limine,

counsel might wish to review, prior to mediation, and certainly

prior to trial, the following: Morrison v. Underwood, 20 N.H.

369 (1850); Jon Groetzinger, Jr., Breach of the Warranty

Covenants in Deeds and the Allowable Measure of Damages, 17 N.H.

Bar J. 1 (1975) .

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 22, 1999

cc: Steven M. Latici, Esg. Peter G. Beeson, Esg.