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 192
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 for summary judgment as to both counts
(doc. no. 16). Doyon opposes summary judgment, and he filed a
cross-motion for summary judgment in his favor as to Count I
(doc. no. 21). Porter Jr. moved to strike Doyon’s cross-motion
for summary judgment (doc. no. G), which Doyon also opposes.
Standard of Review
Summary judgment is appropriate when the moving party
“shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); Faiella v. Fed. Nat’l Mortg. Assoc., 928
F.3d 141, 145 (1st Cir. 2019). “A genuine issue of material
fact only exists if a reasonable factfinder . . . could resolve
the dispute in that party’s favor.” Town of Westport v.
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Monsanto Co., 877 F.3d 58, 64-65 (1st Cir. 2017) (internal
quotation marks and citation omitted). When the parties file
cross-motions for summary judgment, the court views “each motion
separately, drawing all inferences in favor of the nonmoving
party.” Giguere v. Port Res. Inc., 927 F.3d 43, 47 (1st Cir.
2019).
Under the District of New Hampshire’s Local Rules, “[a]
memorandum in support of a summary judgment motion shall
incorporate a short and concise statement of material facts,
supported by appropriate record citations, as to which the
moving party contends there is no genuine issue to be tried.”
LR 56.1(a). Similarly, “[a] memorandum in opposition to a
summary judgment motion shall incorporate a short and concise
statement of material facts, supported by appropriate record
citations, as to which the adverse party contends a genuine
dispute exists so as to require a trial. All properly supported
material facts set forth in the moving party’s factual statement
may be deemed admitted unless properly opposed by the adverse
party.” LR 56.1(b).
In his memorandum in support of his motion for summary
judgment, Porter Jr. complied with Local Rule 56.1(a) by
providing a statement of material facts supported by appropriate
record citations. In his cross-motion for summary
judgment/opposition to Porter Jr.’s summary judgment motion,
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instead of filing a statement of material facts, Doyon accepted
“as true the factual assertions contained in” paragraphs 1
through 21, 24 through 29, and 31 through 48 of Porter Jr.’s
statement of facts. Doc. 22 at 1. Doyon opposed paragraphs 22,
23, and 30 of Porter Jr.’s statement of facts on the ground that
they contained legal argument. Doyon filed no additional
evidentiary material of any kind.
Under these circumstances, the court adopts Porter Jr.’s
statement of facts, noting those paragraphs to which Doyon
objects:
1. Plaintiff, David Doyon, (hereinafter "David") is a
citizen and resident of the state of Arizona, residing
at 10311 West Monaco Blvd., Arizona City, Arizona 85123.
Complaint ¶ 1. David is the son and only child of
Bernadette Porter, (hereinafter "Bernadette"), and
stepbrother to Joel Porter, Sr., (hereinafter "Joel,
Sr."). Id. at ¶ 2.
2. Defendant, Joel R. Porter, Jr., (hereinafter "Joel,
Jr.") is a citizen and resident of the state of
California, residing at 25 Sean Court, Roseville,
California 95678, and is son to Joel, Sr. and stepson to
Bernadette. Id. at ¶ 3.
3. Joel, Sr. and Bernadette were married for
approximately thirty-two (32) years, and mutually
contributed to the accumulation of checking accounts,
savings accounts, money market accounts, IRA's,
investment accounts and life insurance. Answer ¶ 11.
4. Joel, Sr. was the sole owner of real estate in
Raymond, New Hampshire as well as real estate in Epping,
New Hampshire. Id. at ¶ 12. Bernadette was the sole owner
of real estate located at 1257 Smyth Road, in Hooksett,
New Hampshire that was occupied by both Joel, Sr. and
Bernadette. Id. at ¶ 13.
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5. Joel, Sr. and Bernadette jointly owned a property in
Port St. Charlotte, Florida, and jointly held financial
accounts, such as checking and savings accounts, and
money-market accounts. Complaint ¶ 14; Deposition of
Attorney Sheehan p. 17 (hereinafter "Sheehan
Deposition"). Ex. A.
6. The financial assets, personal tangible property, and
real estate properties in Raymond, Hooksett, and Epping,
New Hampshire, and the Florida property consist of the
majority of the marital assets. Complaint ¶ 15; Sheehan
Deposition p. 13-17, 25.
7. On March 15, 2018, Bernadette and Joel, Sr. consulted
with Attorney Virginia Sheehan at her office at 2 Delta
Drive, Suite 303, Concord, New Hampshire for the purpose
of preparing an estate plan. Complaint ¶ 16; Sheehan
Deposition p. 5. Initially, the meeting was only
scheduled by David for Bernadette due to an upcoming
surgery, but both Bernadette and Joel, Sr. attended. Id.
at 9-10.
8. During their meeting with Attorney Sheehan, Joel, Sr.
and Bernadette discussed how to draft the distribution
of their assets, alongside the questionnaire Attorney
Sheehan sent to Bernadette to fill out as best she could.
Complaint ¶ 17; Sheehan Deposition p. 11.
9. Attorney Sheehan testified that she had tried to
engage both Bernadette and Joel, Sr. in the conversation
of their assets, as Bernadette did most of the talking
and Joel, Sr. was fairly quiet, which Attorney Sheehan
expressed as concerning but was common. Id. at 21.
10. Per this conversation on March 15, 2018, upon Joel,
Sr.'s death, the Raymond and Epping Property would pass
to Joel, Jr. and the Hookset property would pass to
David, reserving a life estate to Joel, Sr., if he
survived Bernadette. Complaint ¶ 17a—b; Sheehan
Deposition p. 26. Further, upon the death of Joel, Sr.
or Bernadette, the assets would pass to the survivor of
the two of them, and then divided into equal shares
between the parties, aside from some tangibles and the
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real estate, when the survivor died. Complaint ¶ 17c—d;
Sheehan Deposition p. 19, 71.1
11. While Joel, Sr., and Bernadette expressed their
wishes during the March 15, 2018 meeting with Attorney
Sheehan, Joel, Sr. and Bernadette were explicitly made
aware that upon the death of one spouse, "The surviving
spouse can change their will to change the disposition,
but the survivor cannot affect the New Hampshire real
estate." Id. at 18.
12. Attorney Sheehan subsequently began drafting the
estate planning documents for Joel, Sr. and Bernadette,
and did not set up a second appointment in order to give
them time to review the drafts she was proposing. Id. at
22.
13. On March 27, 2018, Attorney Sheehan sent a letter to
Joel, Sr. and Bernadette enclosing, in part, their draft
Wills. Id. at 27. In this letter, Attorney Sheehan
clearly explained that the Wills contained an "Article
Nine", which stated that either Bernadette or Joel, Sr.
was free to modify their Will at any time. Id. at 27-
28.
14. Once she sent draft estate planning documents to
Joel, Sr. and Bernadette, Attorney Sheehan reached out
to David to inquire as to if Joel, Sr. and Bernadette
had read over the documents. Id. at 84.
15. On April 1, 2018, Joel, Jr. and his wife, Martina,
travelled from their home in California and stayed in
New Hampshire with Joel, Sr. and Bernadette to provide
assistance and care to Joel, Sr. and Bernadette during
and following Bernadette's surgery. Complaint ¶ 18;
Defendant's Affidavit in Support of Defendant's Motion
for Summary Judgment ¶ 3 (hereinafter "Joel, Jr.
Affidavit"). Ex. E.
16. On April 2, 2018 Bernadette and Joel, Sr. met with
Attorney Sheehan to review and execute their estate
planning documents. Complaint ¶ 20. Attorney Sheehan was
unaware of any prior estate planning documents for
1 Doyon refers to the plan discussed at the March 15 meeting
with Attorney Sheehan as the “mutual scheme.”
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either Joel, Sr. or Bernadette. Sheehan Deposition
p. 14. Joel, Sr. did have a Last Will and Testament
executed on March 26, 1975. Ex. B.
17. Joel, Jr. and David were not in the room when
Bernadette and Joel, Sr. were to review and sign their
documents with Attorney Sheehan. Sheehan Deposition p.
28. When Joel, Jr. and David went back into the room
where Bernadette and Joel, Sr. were, Attorney Sheehan
informed them that the New Hampshire Advanced Directives
had been executed by both Joel, Sr. and Bernadette and
that only Bernadette had executed her Will. Id. at 35.
18. Attorney Sheehan informed the group that Joel, Sr.
was having some difficulty when it was time for him to
execute his Will, after reviewing many documents, and
she was uncomfortable having him execute his Will. Id.
at 34. Attorney Sheehan stated that she had no opinion
whether Joel, Sr. was able or not able to understand his
Will and further estate planning documents. Id.
19. Attorney Sheehan explained that she had walked Joel,
Sr. slowly through the signing of his Advanced Directive
because he was hard of hearing, however he was able to
joke with her and sign and initial in all of the places
that Attorney Sheehan directed him to. Id. at 32-36.
Attorney Sheehan felt either he did not want to talk to
her very much and was nervous for Bernadette's surgery,
or was taking a while to understand the documents. Id.
20. No follow—up appointment for Joel, Sr. was ever
scheduled with Attorney Sheehan to execute the Will she
had drafted. Answer ¶ 21
21. According to Bernadette's Will, although she and
Joel, Sr. were expecting to be executing a Will at the
same time, on the same day, it was not their intent that
the Wills be deemed mutual, reciprocal, dependent on one
another, or executed pursuant to a contract. Answer
¶ 22; Bernadette's Last Will and Testament at p. 5
(Article Nine). Ex. C.
22. [Doyon objects to this paragraph] This is consistent
with Attorney Sheehan's advice to both of them that
although they had expressed wanting to split everything
equally, aside from the real property, between Joel, Jr.
and David, that whoever dies second ultimately has
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control over the entire plan and can change the plan.
Sheehan Deposition p. 69-71.
23. [Doyon objects to this paragraph] Therefore, Joel,
Sr. was not obligated to come back to sign his Will as
there was no contractual agreement in Bernadette's Will
that required Bernadette and Joel, Sr. to have mutual
Wills. Id. at 38-39.
24. On April 19, 2018, Bernadette passed away
unexpectedly due to complications from surgery that had
been performed on April 3, 2018. Complaint ¶ 23; Answer
¶ 23 Subsequently, Joel, Jr. and his wife remained in
the Hooksett property for a period of time to assist
Joel, Sr., as Bernadette's Will left him a life estate
in the Hooksett residence. Id. at ¶ 24.
25. Bernadette's Will appointed Joel, Sr. as executor,
and appointed David and Joel, Jr. as alternate co-
executors. Complaint ¶ 25. The parties then both met
with Attorney Sheehan to discuss the administration of
Bernadette's estate, and agreed to be co-executors of
Bernadette's Will. Id. at ¶ 26.
26. On April 24, 2018, Joel, Sr. signed a declination
document that said he did not want to serve as the
executor of Bernadette's estate. Sheehan Deposition
p. 37. Attorney Sheehan met with Joel, Sr. to confirm he
did not want to be the executor of Bernadette's estate
and that he wanted the parties to do it, and he confirmed
this. Id. at 79.
27. Attorney Sheehan prepared and filed the petition
seeking the allowance of Bernadette's Will and the
appointment of the parties as co-executors, which was
allowed by the New Hampshire Circuit Court — 6th Circuit
— Probate Division in Concord, on May 17, 2018. Complaint
¶ 4, 27.
28. On April 25, 2018, David returned home to Arizona,
leaving Joel, Jr. and his wife residing with Joel, Sr.
in the Hooksett, New Hampshire property. Id. at ¶ 29.
Joel, Jr. then assisted his father and Attorney Sheehan
in transferring the assets from Bernadette's estate to
Joel, Sr. pursuant to Bernadette's' Will. Answer ¶ 30.
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29. An email from Attorney Sheehan on May 2, 2018
indicated that Joel, Jr. was to take his father to Bank
of America with Bernadette's death certificate to remove
Bernadette's name from their joint accounts and make the
claim for her life insurance pursuant to her Will, which
was a common practice for family to help with this
process. Sheehan Deposition p. 40-41, 85.
30. [Doyon objects to this paragraph] As these assets
were willed to Joel, Sr., as the survivor of Bernadette,
he was free to do with these assets what he wished. Id.
at 41-42.
31. Attorney Sheehan offered to assist Joel, Sr. with
the retitling of financial assets and beneficiary
designations, however Joel, Jr. said he would take care
of it, which she attributed to the fact that Joel Jr.
was there, in New Hampshire, with his father as well as
the costly legal fees. Id. at 80-82.
32. Joel, Sr. then retained the services of Attorney
Kelly Shanahan (hereinafter "Attorney Shanahan").
Affidavit in Support of Defendant's Motion for Summary
Judgment 112 (hereinafter "Shanahan Affidavit"). Ex. D
33. On April 30, 2018 Joel, Sr. met with Attorney
Shanahan to discuss his real estate holdings, and how
Joel, Sr. wanted to dispose of his property when he died.
Shanahan Affidavit ¶ 1, 2. Ex. D.
34. Joel, Sr. also wanted to purchase the Hooksett, New
Hampshire property from David. On June 4, 2018, Attorney
Shanahan contacted David inquiring on Joel, Sr.'s behalf
about acquiring this property from the him. Answer ¶ 37;
Sheehan Deposition p. 48.
35. Joel, Sr. unequivocally represented to Attorney
Shanahan that he wanted all of his property to pass to
his son, Joel, Jr., upon his death. Shanahan Affidavit
¶ 4.
36. Attorney Shanahan discussed with Joel, Sr. how he
held title to his financial accounts and Attorney
Shanahan confirmed that all personal property would pass
to Joel, Jr. upon his death by operation of law and/or
because Joel, Jr. was identified as the beneficiary. Id.
at ¶ 5.
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37. Regarding the properties in Raymond and Epping, New
Hampshire and the property in Florida, Joel, Sr. wanted
these properties to pass to Joel, Jr. so Attorney
Shanahan advised Joel, Sr. that if he held title to the
real estate jointly, these properties would pass by
operation of law to Joel, Jr. upon Joel, Sr.'s death.
Id.
38. Attorney Shanahan was also given a Power of Attorney
that was signed by Joel, Sr. in 2017 identifying Martina
Porter, Joel, Jr.'s wife (hereinafter "Martina"), as
Joel, Sr.'s attorney-in-fact. Id. at ¶ 6.
39. Joel, Sr. then asked Attorney Shanahan to prepare a
Quitclaim Deed, which she did, that conveyed the Raymond
and Epping, New Hampshire properties from Joel, Sr., as
the sole owner, to Joel, Jr. and his father as joint
tenants with rights of survivorship. Id. at ¶ 7.
40. On or about April 30, 2018, Martina, acting as
attorney-in-fact for Joel, Sr., executed a Quitclaim
Deed which conveyed the Raymond and Epping, New
Hampshire properties from Joel, Sr. as the sole owner to
Joel, Jr. and Joel, Sr. as joint tenants with rights of
survivorship, per the wishes of Joel, Sr. Complaint
¶ 33; Answer ¶ 33.
41. Attorney Shanahan observed Joel, Sr. instruct
Martina to sign the deed for him, and after questioning
Joel, Sr., Attorney Shanahan was confident that he knew
and understood that this deed conveyed the properties to
himself and his son, Joel, Jr., and confirmed that this
was his intention. Shanahan Affidavit ¶ 7.
42. Joel, Sr. stated to Attorney Shanahan that he did
not want to sign the deed himself because he feared his
competency would be questioned by David Doyon and he
believed the transfer would not be contested if Martina
signed it using her authority under the Power of
Attorney. Id. at ¶ 8.
43. On May 1, 2018 Attorney Sheehan contacted Joel Jr.
to ask him about bringing his father back in to complete
his estate planning, and Joel, Jr. responded saying they
wanted to get what was in process taken care of and then
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they would figure out what to do. Sheehan Deposition
p. 44.
44. Attorney Sheehan further contacted Joel, Jr., his
father and David, by a letter dated May 21, 2018 to have
Joel, Sr. come back in to continue working on his estate
planning matters, however Joel, Sr. did not return to
Attorney Sheehan. Id. at 88-89.
45. Joel, Sr. retained Florida Attorney Dorothy K.
Korzen to draft a deed to convey the Florida Property
from Joel, Sr. as sole surviving joint owner to Joel,
Jr. and Joel, Sr. as joint tenant with rights of
survivorship. Answer ¶ 34. On or about May 11, 2018 Joel,
Jr. brought Joel, Sr. to a New Hampshire notary public
to execute the Florida Deed, which was recorded on May
22, 2018. Complaint ¶ 35; Joel, Jr. Affidavit ¶ 18.
46. Joel, Sr. passed away on August 19, 2018 while still
a resident of New Hampshire, and without having executed
a Will with Attorney Sheehan. Answer ¶ 39; Sheehan
Deposition p. 47.
47. As both the surviving joint tenant of Joel, Sr.'s
jointly owned assets, and as Joel, Sr.'s sole heir-at-
law and named beneficiary, Joel, Jr. inherited the
entirety of Joel, Sr.'s estate. Complaint ¶ 53.
Doc. 16-1 at 3-10.
Discussion
Porter Jr. moves for summary judgment in his favor on both
counts of Doyon’s complaint. In response, Doyon filed a cross-
motion for summary judgment on Count I of the complaint (doc.
no. 21). Porter Jr. filed a reply and a motion to strike
Doyon’s combined response/cross-motion for summary judgment
(doc. no. 24) on the ground that it was untimely, as the
deadline for motions for summary judgment passed on August 1,
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2019, and on the ground that it did not comply with Federal Rule
of Civil Procedure 56 because it requested findings of fact.
In his motion for summary judgment, Porter Jr. contends
that there is insufficient evidence to support Doyon’s claims
for intentional interference with inheritance and unjust
enrichment. As to his intentional interference claim, Doyon
responds that the facts show that he had an expectation of
inheriting an equal share of certain parts of Porter Sr.’s
estate, including half of the Florida Property and half of the
financial assets. As to his unjust enrichment claim, Doyon
assets that “[t]he facts are presently insufficiently developed
to determine whether” Porter Jr. exercised undue influence over
Porter Sr. Doc. 22 at 14.
A. Intentional Interference with Inheritance
For the purpose of resolving the summary judgment motions,2
the court uses the standard for intentional interference with
inheritance from the Restatement (Second) of Torts: “One who by
fraud, duress or other tortious means intentionally prevents
2 As discussed in greater detail in the court’s order on
Porter Jr.’s motion to dismiss, doc. no. 13, the New Hampshire
Supreme Court has not addressed whether it recognizes the tort
of intentional interference with inheritance. In that order,
this court found that the tort would be recognized, but it did
not address the standard that would apply because Porter Jr. did
not raise that issue.
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another from receiving from a third person an inheritance or
gift that he would otherwise have received is subject to
liability to the other for loss of the inheritance or gift.”
Restatement (Second) of Torts § 774B (1979); see also 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.”).3 The comments to § 774B further
explain the type of conduct that falls within the scope of
intentional interference with an inheritance:
The liability stated in this Section is limited to
cases in which the actor has interfered with the
inheritance or gift by means that are independently
tortious in character. The usual case is that in which
the third person has been induced to make or not to
make a bequest or a gift by fraud, duress, defamation
or tortious abuse of fiduciary duty, or has forged,
altered or suppressed a will or a document making a
gift. In the absence of conduct independently
tortious, the cases to date have not imposed liability
under the rule stated in this Section. Thus one who
3 In their briefs, Doyon and Porter Jr. refer to the
standard for “intentional interference with expectancy of
inheritance” articulated in Schilling v. Herrera, 952 So. 2d
1231, 1234 (Fla. Dist. Ct. App. 2007), which requires “(1) the
existence of an expectancy; (2) intentional interference with
the expectancy through tortious conduct; (3) causation; and (4)
damages.” While the Restatement standard is articulated
differently than the Florida standard used by the parties, they
are, in the aspects relevant to this order, functionally the
same. See Lindberg v. United States, 164 F.3d 1312, 1319 (10th
Cir. 1999) (noting that “[t]he elements of the tort are quite
uniform,” citing the Restatement (Second) of Torts § 774B, and
setting out elements similar to those in Schilling v. Herrera).
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by legitimate means merely persuades a person to
disinherit a child and to leave the estate to the
persuader instead is not liable to the child.
Restatement (Second) of Torts § 774B cmt. c (1979).
Porter Jr. contends that Doyon cannot show that he
intentionally interfered with an inheritance because Doyon did
not have a vested right in the inheritance and because Porter
Jr. did not interfere with any such inheritance. Doyon responds
that he need not prove that he had a vested right in an
inheritance and that the conduct of Porter Jr. caused him to
lose an inheritance that he would have received. In this case,
whether Doyon had a vested right in the inheritance or a mere
expectancy that he would receive the inheritance makes no
difference because there is no evidence from which a reasonable
jury could find that Porter Jr., through tortious means,
prevented Doyon from receiving an inheritance that he otherwise
would have received. See Restatement (Second) of Torts § 774B
(1979); see also Harmon v. Harmon, 404 A.2d 1020, 1024 (Me.
1979) (holding that a “mere expectancy” or non-vested interest
is sufficient for liability for intentional interference with
inheritance if, “but for the tortious interference” of the
defendant, the plaintiff “would in all likelihood have received
a gift or specific profit from a transaction”).
Doyon contends that Porter Jr. worked to “defeat” an
agreement between Porter Sr. and Bernadette to devise to Doyon
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and Porter Jr. equal shares of certain parts of their joint
assets. Even though such a plan was discussed at the March 15
meeting with Attorney Sheehan, Porter Sr. was never under any
obligation to follow it, and Porter Jr. was free to persuade
Porter Sr. to devise his assets in another way. As Attorney
Sheehan informed Bernadette and Porter Sr. during the meeting,
“the survivor could change their documents after the death of
the first spouse.” Doc. 16-2 at 19. Article Ninth, which
Attorney Sheehan included in both Bernadette’s will and Porter
Sr.’s draft will, stated the following: “Although my spouse and
I are each executing a Will on the same day, it is not my
intent, nor is it my spouse’s intent, that such Wills be
construed or deemed mutual, reciprocal or dependent upon the
other, nor are such documents executed pursuant to a contract.”
Doc. 16-4 at 6. Finally, in her deposition, Attorney Sheehan
made clear that “[t]here was no contract between the two of them
that said you can’t modify your will after I die . . . .” Doc.
16-2 at 23. Therefore, under these circumstances that are
uncontroverted, even if Porter Sr. had signed the draft will
prepared for him by Attorney Sheehan, he would have been free to
change it if he decided that he wanted to devise his assets in a
different way.
Indeed, after the March 15 meeting and after Bernadette’s
death, Porter Sr. expressed his unambiguous intent to have
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Porter Jr. inherit the entirety of his estate.4 Attorney
Shanahan, in her affidavit, stated that “Mr. Porter
unequivocally represented that he wanted all of his property to
pass to his son, Joel Porter, Jr., upon his death.” Doc. 16-5
¶ 4. Even if Porter Jr. persuaded Porter Sr. at some time after
the March 15 meeting to leave his entire estate to him, the
Restatement makes clear that there is no liability if
“legitimate means” are used to persuade a person to devise his
estate in a particular way. Restatement (Second) of Torts
§ 774B cmt. c (1979). Doyon has not submitted any evidentiary
material of his own, and Doyon has not identified any evidence
submitted by Porter Jr., that indicates that Porter Jr. induced
his father “to make or not to make a bequest or a gift by fraud,
duress, defamation or tortious abuse of fiduciary duty,” and he
has not presented any evidence that Porter Jr. “forged, altered
or suppressed a will or a document making a gift.” Id.
As there is no evidence from which a reasonable jury could
conclude that Porter Jr. did anything “by fraud, duress or other
tortious means” to prevent Doyon from receiving an inheritance
that he otherwise would have received, Porter Jr. is entitled to
summary judgment as to Count I. Because the court finds that
4 Notably, Porter Sr.’s March 1975 will, which Attorney
Sheehan was not told about, leaves his estate to his first wife,
Jacqueline Porter, and then, if Jacqueline Porter predeceased
him, to Porter Jr. Doc. 16-3.
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Porter Jr. is entitled to summary judgment as to Count I,
Doyon’s cross-motion for partial summary judgment is denied.5
B. Unjust Enrichment
Unjust enrichment occurs when an individual obtains title
to property by fraud, duress, or undue influence, or violates a
duty arising out of a fiduciary relation to another. See In re
Estate of Cass, 143 N.H. 57, 60 (1998); Patey v. Peaslee, 101
N.H. 26, 29 (1957). Porter Jr. argues that there are no facts
supporting Doyon’s claim that he exercised undue influence over
Porter Sr. In response, Doyon contends that summary judgment is
inappropriate because the facts are insufficiently developed to
determine whether Porter Jr. unduly influenced Porter Sr.
Once Porter Jr. asserted that there was an absence of
evidence to support Doyon’s claim, it became Doyon’s burden to
develop facts to support it. E.g., Martin v. Tricam Indus.,
Inc., 379 F. Supp. 3d 105, 107-08 (D. Mass. 2019). Doyon,
however, has not presented any evidence in support of his unjust
enrichment claim, and the evidence presented by Porter Jr. does
not support an unjust enrichment claim. Therefore, the court
5 While Doyon’s cross-motion for partial summary judgment
was untimely, the court has considered the arguments made by
Doyon in his filing. Because Porter Jr.’s motion for summary
judgment is granted, Porter Jr.’s motion to strike Doyon’s
cross-motion for partial summary judgment is denied as moot.
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grants Porter Jr.’s motion for summary judgment in his favor as
to Count II.
Conclusion
For the foregoing reasons, Porter Jr.’s motion for summary
judgment (doc. no. 16) is granted. Doyon’s cross-motion for
partial summary judgment (doc. no. 21) is denied. Porter Jr.’s
motion to strike (doc. no. 24) is denied as moot. The Clerk of
Court is directed to enter judgment in favor of Porter Jr. and
close the case.
SO ORDERED.
__________________________
Joseph A. DiClerico, Jr.
United States District Judge
November 13, 2019
cc: Counsel of Record.
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