McCormick v. Wakefield, NH, Town of et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kimberly McCormick
v. Civil No. 22-cv-087-LM-AJ
Town of Wakefield
Estate of Brenda Beckwith
REPORT AND RECOMMENDATION
Plaintiff Kimberly McCormick sued the estate of her late
mother, Brenda T. Beckwith, and the Town of Wakefield, New
Hampshire (“the Town”). The Beckwith Estate (“the Estate”) is
the only remaining defendant.1 Ms. McCormick has asserted a
claim against the Estate for unjust enrichment, claiming that
Ms. Beckwith: 1) failed to pay property taxes on property they
co-owned in Wakefield, despite the fact that Ms. McCormick gave
her money to make the payments; and 2) stole money from a joint
bank account. The Estate has moved for summary judgment (Doc.
No. 35). Pursuant to 28 U.S.C. § 636(B)(1)(A) and LR 72.1, the
motion has been referred to the undersigned Magistrate Judge for
a report and recommendation. For the reasons that follow, the
district judge should grant the defendant’s motion because this
1 The court previously granted motions that resulted in
dismissal of claims against the Town of Wakefield. See September
22, 2023 Order (Doc. No. 23); January 22, 2024 Report and
Recommendation (Doc. No. 28); May 9, 2024 Order (Doc. No. 34) .
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suit was filed after the expiration of the applicable statute of
limitations.
Standard of Review
A movant is entitled to summary judgment if it “shows that
there is no genuine dispute as to any material fact and [that
it] is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A factual dispute is genuine if “the evidence about the
fact is such that a reasonable jury could resolve the point in
favor of the” nonmovant. Rodríguez-Cardi v. MMM Holdings, Inc.,
936 F.3d 40, 47 (1st Cir. 2019) (quoting Sánchez v. Alvarado,
101 F.3d 223, 227 (1st Cir. 1996)). A fact is material if it has
the “potential to influence the outcome of the suit under the
applicable law.” Id. at 46 (quoting Cherkaoui v. City of Quincy,
877 F.3d 14, 23 (1st Cir. 2017)). All facts and reasonable
inferences are viewed in the light most favorable to the
nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108, 115
(1st Cir. 2013).
Factual Background2
Ms. McCormick began giving money to Ms. Beckwith towards
the Wakefield property taxes from 1989 until 2017. Pltf. Interr.
Ans., Def. Mem., Exh. A. (Doc. No. 35-2) at 6, 11. On or around
2 Although Ms. McCormick commenced this litigation pro se,
she has since retained counsel. As no objection to the Estate’s
motion was filed, the properly supported facts in the Estate’s
memorandum of law are deemed admitted. LR 56.1(b).
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January 2017, Ms. Beckwith apologized to Ms. McCormick and
“confided in her that the money Kimberly McCormick had been
depositing into the bank for the purpose of paying the property
tax had been erroneously spent and that [Ms. Beckwith] needed
help obtaining an attorney to get the property back. Id. at 9.
Ms. McCormick and Ms. Beckwith four joint bank accounts,
three with Enterprise Bank and another with Profile Bank. Id. at
12. Ms. Beckwith “cleaned out” or otherwise withdrew Ms.
McCormick’s money from the Enterprise Bank accounts on February
21, 2018 and from Profile Bank on May 24, 1994. Id. at 11.
Legal Analysis
“Unjust enrichment is an equitable remedy that is available
when an individual receives a benefit which would be
unconscionable to retain.” Axenics, Inc. v. Turner Const. Co.,
62 A.3d 754, 764 (N.H. 2013) (internal quotes omitted). A
plaintiff seeking “restitution must establish not only unjust
enrichment, but that the person sought to be charged had
wrongfully secured a benefit or passively received one . . .”
Gen. Insulation Co. v. Eckman Const., 159 N.H. 601, 611, 992
A.2d 613, 621 (2010).
The Estate asserts that Ms. McCormick filed this lawsuit
after the expiration of the applicable statute of limitations
and, even if the suit is timely, it is barred by the doctrine of
res judicata because Ms. McCormick could have raised her claims
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in a prior state court lawsuit that she and Ms. Beckwith brought
against the Town of Wakefield. As this suit is clearly time-
barred, the court does not address the impact of the prior
litigation.
In New Hampshire, “all personal actions,” with some
exceptions not relevant here, “may be brought only within 3
years of the act or omission complained of . . . .” N.H. Rev.
Stat. Ann. § 508:4, I. Its discovery rule provides that,
when the injury and its causal relationship to the act
or omission were not discovered and could not
reasonably have been discovered at the time of the act
or omission, the action shall be commenced within 3
years of the time the plaintiff discovers, or in the
exercise of reasonable diligence should have
discovered, the injury and its causal relationship to
the act or omission complained of.
Id. The three-year limitations period applies to claims of
unjust enrichment. Singer Asset Fin. Co., LC v. Wyner, 937 A.2d
303 312 (N.H. 2007).
Here, it is undisputed that Ms. Beckwith, who had been
giving money to Ms. Beckwith to pay the property taxes since
1989, had notice of unpaid property taxes and a pending lien and
tax deed as early as September 2016. See N.H. Super. Ct. Order,
(Doc. No. 24-2). In addition, she was told by Ms. Beckwith in
January 2017 that the funds she had deposited into those bank
accounts were “erroneously spent,” and not used to pay property
taxes and she was also aware that Ms. Beckwith had withdrawn all
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the money from the Enterprise Bank accounts by February 21,
2018, and Pltf. Interr. Ans., Def. Mem., Exh. A. (Doc. No. 35-2)
at 9, 12. Finally, Ms. McCormick alleges that Profile Bank
account was “cleaned out” in 1994. Id. at 12.
In light of the undisputed factual record, Ms. McCormick’s
unjust enrichment claims accrued no later than February 21,
2018, the latest date that Ms. McCormick leaned of Ms.
Beckwith’s actions. As she commenced this action more than four
years later, on March 8, 2022, her claim against the Estate is
time-barred and the Estate is entitled to summary judgment.
Conclusion
Based on the foregoing, the district judge should grant the
Estate’s motion for summary judgment (Doc. No. 35) and order
this case closed. Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day
period may be extended upon motion. Only those issues raised in
the objection(s) to this Report and Recommendation are subject
to review in the district court. See Sch. Union No. 37 v. United
Nat'l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010). Any issues
not preserved by such objection(s) are precluded on appeal. See
id. Failure to file any objections within the specified time
waives the right to appeal the district court's Order. See
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Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
August 28, 2024
cc: Counsel of Record.
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