APPEAL FROM FINAL JUDGMENT OF MERRIMACK ... Rules Super Ct. R. 12(e) 33 Treatises 38 Am. Jur. 2d...
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THE STATE OF NEW HAMPSHIRE SUPREME COURT No. 2014-0762 Steven J. Cohen v. John Raymond ____________________________________________________________________________ APPEAL FROM FINAL JUDGMENT OF MERRIMACK COUNTY SUPERIOR COURT _____________________________________________________________________________ BRIEF OF PLAINTIFF STEVEN J. COHEN Steven M. Gordon, Esquire NH Bar #964 Benjamin T. Siracusa Hillman, Esquire NH Bar #20967 SHAHEEN & GORDON, P.A. 107 Storrs Street, PO Box 2703 Concord, NH 03302-2703 Telephone: (603) 225-7262 Facsimile: (603) 225-5112 [email protected] [email protected] Oral Argument to be presented by Benjamin T. Siracusa Hillman, Esquire
Transcript of APPEAL FROM FINAL JUDGMENT OF MERRIMACK ... Rules Super Ct. R. 12(e) 33 Treatises 38 Am. Jur. 2d...
THE STATE OF NEW HAMPSHIRE
SUPREME COURT
No. 2014-0762
Steven J. Cohen
v.
John Raymond
____________________________________________________________________________
APPEAL FROM FINAL JUDGMENT OF MERRIMACK COUNTY SUPERIOR COURT
_____________________________________________________________________________
BRIEF OF PLAINTIFF STEVEN J. COHEN
Steven M. Gordon, Esquire
NH Bar #964
Benjamin T. Siracusa Hillman, Esquire
NH Bar #20967
SHAHEEN & GORDON, P.A.
107 Storrs Street, PO Box 2703
Concord, NH 03302-2703
Telephone: (603) 225-7262
Facsimile: (603) 225-5112
Oral Argument to be presented by
Benjamin T. Siracusa Hillman, Esquire
i
TABLE OF CONTENTS
TABLE OF CONTENTS .............................................................................................................. i
TABLE OF AUTHORITIES ...................................................................................................... iii
PARTIES AND COUNSEL ......................................................................................................... v
QUESTIONS PRESENTED FOR REVIEW ............................................................................. 1
CONSTITUTIONAL PROVISIONS, STATUTES, ORDINANCES, RULES OR
REGULATIONS INVOLVED .................................................................................................... 1
STATEMENT OF THE CASE AND STATEMENT OF FACTS ........................................... 2
SUMMARY OF ARGUMENT .................................................................................................... 9
STANDARD OF REVIEW ........................................................................................................ 11
ARGUMENT ............................................................................................................................... 12
I. The Evidence Compels the Conclusion that the Funds Were Transferred to
Raymond Subject to the Condition that Raymond Would Use the Funds in a
Business Venture with Cohen, and Such Condition Was Not Met, Hence Raymond
Was Unjustly Enriched................................................................................................... 12
A. The Superior Court Correctly Concluded in its January 7 Order that Raymond
Was Required to Make Restitution, and the Evidence Presented at the Hearing on
Reconsideration Was Materially Identical. ........................................................... 12
B. The Superior Court Erred in Concluding in its November 4 Order that the
Transfer Was an Unconditional Gift. .................................................................... 14
II. In its November 4 Order, the Superior Court Mischaracterized and Misquoted
Cohen’s Testimony Regarding Prior Gifts and Improperly Relied Upon this
Testimony to Eliminate Cohen’s Unjust Enrichment Claim. ..................................... 16
A. The Superior Court Mischaracterized and Misquoted Cohen’s Testimony
Regarding Prior Gifts. ........................................................................................... 16
B. The Superior Court Erred in Relying Upon Cohen’s Testimony Regarding Prior
Gifts to Eliminate Cohen’s Unjust Enrichment Claim. ........................................ 19
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III. The Superior Court Should Not Have Presumed that the Transfer Was A Gift, and
Raymond Did Not Meet His Burden To Establish that the Transfer Was A Gift. ... 21
A. No Court Has Applied a Gift Presumption to Gifts to the Spouses of Stepchildren,
and This Court Has Applied a Gift Presumption to Gifts to the Spouses of
Children Only When the Conveyance Was to Both the Child and Child’s
Spouse. .................................................................................................................. 21
B. Raymond Did Not Meet His Burden To Show the Transfer Was an Unconditional
Gift. ....................................................................................................................... 25
IV. Cohen Met Any Burden to Show that the Transfer Was Not an Unconditional
Gift. ................................................................................................................................... 29
V. The Superior Court Should Have Denied the Motion for Reconsideration. ............. 33
CONCLUSION ........................................................................................................................... 35
ORAL ARGUMENT .................................................................................................................. 35
SUPERIOR COURT ORDERS ................................................................................................. 35
CERTIFICATE OF COMPLIANCE ....................................................................................... 36
ADDENDUM ............................................................................................................................... 37
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TABLE OF AUTHORITIES
Cases
Barnes v. Michalski, 925 N.E.2d 323 (Ill. App. 2010) ................................................................. 22
Bel Air Assocs. v. N.H. Dep’t of Health & Human Servs., 158 N.H. 104 (2008) ......................... 31
Blagbrough Family Realty Trust v. A & T Forest Products, Inc., 155 N.H. 29 (2007) ......... 11, 12
Chamberlin v. Chamberlin, 116 N.H. 368 (1976) ............................................................ 22, 23, 30
Chisholm v. Ultima Nashua Indus. Corp., 150 N.H. 141 (2003).................................................. 31
Cook v. Sullivan, 149 N.H. 774, 780 (2003) ................................................................................. 12
D’Uva v. D’Uva, 74 So.2d 889 (Fla. 1954) .................................................................................. 23
Elliott v. Standard Acc. Ins. Co., 92 N.H. 505 (1943) .................................................................. 31
Ellis v. Candia Trailers & Snow Equipment, Inc., 164 N.H. 457 (2012) ..................................... 18
Erin Food Services, Inc. v. Derry Motel, Inc., 131 N.H. 353 (1988) ........................................... 32
Gilkas v. Nicholis, 96 N.H. 177 (1950)................................................................................... 15, 16
Grichuhin ex ux. v. Grichuhin, 272 P.2d 141 (Wash. 1954) ......................................................... 23
Hodge v. Me-Bee Co., 240 A.2d 818 (Pa. 1968) .......................................................................... 32
In re Grand Jury Proceedings, 02-S-1154, 2005 WL 678994 (N.H. Super. Mar. 22, 2005) ....... 33
In re Marriage of Kendra, 815 N.E.2d 22 (Ill. App. 2004) .......................................................... 23
Jocoy v. Jocoy, 562 S.E.2d 674 (S.C. 2002) ................................................................................. 23
Keshishian v. CMC Radiologists, 142 N.H. 168 (1997) ............................................................... 34
Kowalski v. Cedars of Portsmouth Condo. Ass'n, 146 N.H. 130 (2001) ...................................... 15
Kravitz v. Beech Hill Hospital, LLC, 148 N.H. 383 (2002) .......................................................... 34
Murano v. Murano, 122 N.H. 223 (1982)..................................................................................... 22
Nashua Trust Co. v. Mosgovian, 97 N.H. 17 (1951) .................................................................... 25
Ohmer v. Ohmer, 898 N.E.2d 106 (Ohio Ct. Common Pleas 2008) ............................................ 16
Panto v. Moore Business Forms, Inc., 130 N.H. 730 (1988)........................................................ 31
Pedersen v. Brook, 151 N.H. 65 (2004) ............................................................................ 14, 21, 25
Pennichuck Corp. v. City of Nashua, 152 N.H. 729 (2005) ......................................................... 32
Presby v. Bethlehem Village Dist., 120 N.H. 493 (1980) ............................................................. 31
Ryan v. Ryan, 104 So.2d 700 (Ala. 1958) ..................................................................................... 23
Smith v. Shepard, 144 N.H. 262 (1999) ........................................................................................ 33
Somer v. Bogart, 749 S.W.2d 202 (Tex. App. 1988) .................................................................... 23
State v. Haley, 94 N.H. 69 (1946) ................................................................................................. 32
Varap v. Varap, 222 N.E. 2d 77 (Ill. App. 1966) ......................................................................... 23
Ver Brycke v. Ver Brycke, 843 A.2d 758 (Md. 2004) ................................................................... 16
White v. Poole, 73 N.H. 403 (1905) .............................................................................................. 33
Statutes
RSA 561:1 ..................................................................................................................................... 24
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Rules
Super Ct. R. 12(e).......................................................................................................................... 33
Treatises
38 Am. Jur. 2d Gifts § 67 ........................................................................................................ 14, 35
38 Am. Jur. 2d Gifts § 79 ........................................................................................................ 22, 25
66 Am.Jur.2d Restitution and Implied Contracts § 2 (1973) ........................................................ 32
7 C. DeGrandpre, New Hampshire Practice Wills, Trusts and Gifts § 34.04 (2003) ............. 14, 25
G. Bogert, Trusts and Trustees, §§ 459-460 (2d ed. 1964) ........................................................... 22
R. Chester, G. G. Bogert, G. T. Bogert, and A. Hess, Bogert’s Trusts and Trustees § 460 (Sept.
2014).............................................................................................................................. 23, 24, 25
Restatement (Second) of Contracts § 4 (1981) ............................................................................. 30
Restatement (Second) of Contracts § 5, cmt. (a) (1981)............................................................... 30
v
PARTIES AND COUNSEL
The parties and Counsel are as follows:
Party seeking review:
Steven J. Cohen
146 Southwest Road
Canterbury, NH 03224
Counsel of Record for Steven J. Cohen
Steven M. Gordon (NH Bar #964)
Benjamin T. Siracusa Hillman (NH Bar #20967)
SHAHEEN & GORDON, P.A.
107 Storrs Street
P.O. Box 2703
Concord, NH 03302-2703
Telephone: (603) 225-7262
Facsimile: (603) 225-5112
Other Parties of Record
John Raymond
40 Shawmut Street
Concord, NH 03301
Counsel of Record for John Raymond
Robert S. Carey (NH Bar #11815)
Orr & Reno
P.O. Box 3550
Concord, NH 03302-3550
Telephone: (603) 224-2381
Facsimile: (603) 223-9010
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QUESTIONS PRESENTED FOR REVIEW
1. Whether the Superior Court erred in reversing itself and holding that the provision
of $250,000 by Plaintiff Steven J. Cohen to Defendant John Raymond was an unconditional gift.
App. 187-193, 194-199, 203-204 ¶¶ 29-35, 209-210 ¶¶ 29-33.
2. Whether the Superior Court erred in reversing itself and holding that the provision
of $250,000 by Plaintiff Steven J. Cohen to Defendant John Raymond was not a conditional gift.
App. 187-193, 194-199, 203-204 ¶¶ 29-35, 209-210 ¶¶ 29-33.
3. Whether the Superior Court erred in holding that the provision of $250,000 by
Plaintiff Steven J. Cohen to Defendant John Raymond was not a loan. App. 187-193, 194-199,
203-204 ¶¶ 24-28, 209-210 ¶¶ 24-28.
4. Whether the Superior Court erred in denying Plaintiff Steven J. Cohen’s claim for
unjust enrichment. App. 187-193, 194-199, 203-204 ¶¶ 29-35, 209-210 ¶¶ 29-33.
5. Whether the Superior Court erred in holding that the provision of $250,000 by
Plaintiff Steven J. Cohen to Defendant John Raymond, where Defendant Raymond was the
spouse of Plaintiff Cohen’s stepdaughter, was a transfer “between family members” sufficient to
create a rebuttable presumption that a gift was intended. App. 187-193, 194-199.
6. Whether the Superior Court erred in granting Defendant John Raymond’s Motion
for Reconsideration of its January 7, 2014 Order concluding that the provision of $250,000 by
Plaintiff Steven J. Cohen to Defendant John Raymond was a conditional gift, where Plaintiff
Cohen had specifically alleged unjust enrichment in his Complaint and Defendant Raymond did
not demonstrate any error of fact or law in the Court’s January 7, 2014 Order. App. 212-222,
223-236.
CONSTITUTIONAL PROVISIONS, STATUTES, ORDINANCES, RULES OR
REGULATIONS INVOLVED
The only constitutional provision, statute, ordinance, rule, or regulation cited or otherwise
involved is RSA 561:1, Distribution Upon Intestacy, which is set forth in the Addendum.
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STATEMENT OF THE CASE AND STATEMENT OF FACTS
Statement of the Case
Plaintiff, Steven J. Cohen (“Cohen”), brought suit against Defendant, John Raymond
(“Raymond”), seeking restitution of $250,000 that Cohen had transferred to Raymond in January
2010, by means of depositing this sum in an investment account at Merrill Lynch in Raymond’s
name. App. 56. In his Complaint, Cohen alleged in Count One that the transfer was a loan and
that he is entitled to repayment; in Count Two, Cohen alleged that Raymond would be unjustly
enriched by retaining the $250,000 and that Cohen is entitled to restitution. App. 206-211. At
trial, Cohen asserted that the purpose of the transfer was for a future business venture, which
ultimately did not materialize. See, e.g., 11/18 Tr. 68:9-17, 70:13-14, 70:23-72:1, 72:9-15,
75:12-14. Raymond asserted that he never had an intention to go into business with Cohen, that
the transfer was an unconditional gift, and that he is entitled to retain the funds. App. 56, 58-59.
Following a bench trial before the Superior Court (McNamara, J.), in an Order dated
January 7, 2014 (“January 7 Order”), the Court found that the $250,000 was a conditional gift
and that the condition was not met, and that Cohen was thus entitled to restitution in the amount
of $250,000. App. 49. On the core factual issues presented, the Court specifically found that
Raymond was untruthful in his testimony and that Cohen was truthful. App. 43-44, 47-48.
Raymond moved for reconsideration, arguing that the issue of a conditional gift was not briefed
or argued by either party. App. 51. Cohen moved to amend his Complaint to conform to the
evidence, in particular to clarify that his unjust enrichment claim incorporated the theory that the
conferral of the funds was subject to the condition that Raymond would use the funds as seed
money for a future business venture with Cohen, and that because such a venture never took
place, Cohen was entitled to restitution. App. 223-236.
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The Court granted both motions, App. 52, 54, and held a subsequent hearing at which
additional evidence was taken. Following this hearing, the Court issued a new Order dated
November 4, 2014 (“November 4 Order”), incorporating the findings of its January 7 Order, and
still finding that Raymond was untruthful in his testimony, but now concluding that the $250,000
was an unconditional gift. App. 56-63. The Court also concluded that a presumption of gift
applied based on the fact that Raymond, Cohen’s step-son-in-law, was his family member, and
that Cohen had not met his burden to show that the transfer was a loan. App. 61-63. Cohen now
appeals the Superior Court’s November 4 Order denying his claims for breach of contract and
unjust enrichment, and the part of the Superior Court’s February 28, 2014 Order granting
Raymond’s motion for reconsideration.
Statement of Facts
Cohen is a now 64 year-old man and a lifelong resident of the Concord area. App. 57.
Shortly after he graduated from college in 1972, Cohen began working in the family business,
Max Cohen and Sons Inc., which dealt in scrap metal. App. 57. At the time he began, the
business was a small and traditional scrap metal business. App. 57. Much of the work that he
did when he began was done by hand and involved manual labor. App. 57.
The business moved into recycling in the late 1980s, and the recycling business, now a
separate corporation, did extremely well. App. 57. Like many generational businesses, the
younger generation wanted to move faster and take more risks than the older, 11/18 Tr. 17:22-
18:25, 21:20-22:22, and in 1996, Cohen entered into an agreement to purchase the business from
his father, paying the purchase price out over ten years, App. 57; 11/18 Tr. 25:22-26:19.
Following the purchase from his father, the business began to expand due to Cohen’s hard work
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and business acumen. He was now able to take significant business and financial risks; in turn,
these decisions were financially rewarded. App. 57; 11/18 Tr. 32:11-37:15.
Cohen and Raymond met when Raymond began dating Cohen’s stepdaughter, Molly.
App. 57. At the time they met, Raymond was employed selling cars. App. 57. Cohen offered
Raymond a job, and as part of his initiation into the work world, required Raymond to begin by
doing difficult, manual work. App. 57. Raymond began working for Cohen in 2001 or 2002,
and was a good worker. App. 57; 11/18 Tr. 43:6-11, 45:20-21. Raymond rose through the ranks
and became one of Cohen’s most valued assistants. App. 57. Cohen testified that he had
believed Raymond to be a person of integrity. App. 57. Raymond, for his part, testified that he
respects Cohen greatly and learned a great deal about the recycling business from him. App 58.
After Cohen’s father died, Cohen learned that he had been written out of his father’s will,
and this soured Cohen on the idea of maintaining the tradition of a family business. App. 57;
11/18 Tr. 48:10-50:11. In December 2006, he sold the business to a corporation called
Schnitzer. App. 57.
Following the sale, Cohen provided severance gifts to several of his former employees.
App. 58. He paid off the home mortgage of Raymond and Cohen’s stepdaughter, Molly, in the
amount of $156,000, as a gift to them and as a reward for Raymond’s work at the business, and
discussed this gift with them both. App. 48, 58; 11/18 Tr. 73:14-74:25. Cohen made this gift
without consulting his accountant, with the result that this gift was omitted from Cohen’s annual
gift tax return. App. 58; 11/18 Tr. 75:21-76:23.
Following the sale to Schnitzer, both Cohen and Raymond were given three year
contracts to work for Schnitzer at significant annual salaries and bonuses. App. 57; 11/18 Tr.
54:3-15. As a consequence of the purchase and sale agreement and his employment contract,
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Cohen was constrained by an eight year non-compete,1 which precluded him from being
involved in the recycling business in the New England area, 10/14 Tr. 86:1-4. Raymond, by
contrast, had only a six month non-compete in his employment contract. App. 58.
Raymond received a base salary of $180,000 and total annual compensation of
approximately $250,000. App. 57. However, both Cohen and Raymond were dissatisfied
working at Schnitzer, as their respective entrepreneurial spirits did not mesh well with working
for a large corporation. App. 57; 11/18 Tr. 54:24-55:4. Cohen soon left employment at
Schnitzer; Raymond remained but was anxious to leave. App. 57-58; 11/18 Tr. 52:22-53:3.
After Cohen left Schnitzer, he and Raymond frequently talked about engaging in future
business ventures together. They had extensive discussions about their potential business
opportunities. App. 57-58; 11/18 Tr. 55:5-7; 64:1-14. It was assumed that Cohen would supply
the capital, as the recycling business requires significant capital investment and Raymond did not
possess such resources on his own. App. 47; 11/18 Tr. 61:25-62:8, 67:6-7. These discussions
sometimes involved third parties as potential business partners. See, e.g., App. 141-162, 174-
186. While Raymond was employed at Schnitzer, they traveled extensively, at Cohen’s expense,
to observe scrapping and shredding operations and explore business opportunities together,
including to Germany, Maryland, Massachusetts, and Rhode Island. App. 57-58, 163-173; 11/18
Tr. 55:8-60:6, 61:5-61:24, 62:19-63:13. Like fishing entrepreneurs, they dangled business lines
into various ponds, looking for the right opportunity. Raymond did not report these travels or
contacts to Schnitzer. 11/19 Tr. 181:18-182:9.
Believing that his non-compete was to expire in 2012, Cohen began to more vigorously
pursue business opportunities with Raymond “in expectation of being in business in 2012.”
1 The Superior Court incorrectly found that Cohen’s non-compete was six years. App. 58. While Cohen
had believed that it would run for five years from when he stopped working for Schnitzer, ending in 2012,
in reality, it ran for eight years from the sale, or until 2014. 11/18 Tr. 52:4-53:3, 54:19-23; 61:1-4.
6
11/18 Tr. 60:5-11, 67:4-11.2 In January 2010, in and around the time when they were discussing
potential business deals, Cohen came up with the idea of transferring a sum of money to
Raymond that Raymond could invest, let grow, and that would serve as “seed money” for their
future business. App. 47; 11/18 Tr. 68:9-17, 70:13-14, 70:23-72:1, 72:9-15, 75:12-14. Cohen
set up an account with a broker at Merrill Lynch, Steve Yianakopolos. App. 58. Cohen knew
Yianakopolos socially and thought he would be a good person to help Raymond learn about
investing, but had no prior professional relationship with him. App. 59; 11/18 Tr. 66:5-68:17.
Raymond did not know Yianakopolos. App. 59.
In opening the account, Cohen intended to seed a future joint business venture and to
provide Raymond with investment experience. 11/18 Tr. 68:10-17. Consistent with this
purpose, when meeting with Yianakopolos, Cohen and Raymond discussed Cohen’s non-
compete and Raymond discussed leaving Schnitzer and they both “talked about their working
together.” App. 84:21-22. At the meeting there was discussion that “at some point Steve would
be able to reenter the business and then they would be able to work together.” App. 91:22-92:2.
Yianakopolos understood that the funding of the account was “the beginning of something for
the future, that they would do some work together in the future” and that the account was set up
for this purpose. App. 86:2-8. Further, from Cohen and Raymond’s conversation, Yianakopolos
understood that the $250,000 was the “seeding” of a future business venture. App. 88:13-16. At
no time during the meeting did Cohen or Raymond suggest or refer to the transfer as a “gift.”
App. 59, 116:19-23. Rather, both parties were clear that opening the account was the financial
beginning of a future business relationship. App. 59. The minimum to set up an account was
$250,000, and Cohen put in that amount. App. 58; 11/18 Tr. 67:25-68:5, 68:9-10.
2 The purchase and sale agreement and employment contracts contained separate non-compete clauses,
and at the time, Cohen erroneously believed that these clauses would run concurrently, rather than
consecutively, making for termination in 2012 rather than 2014. 11/18 Tr. 60:5-61:4; 10/14 Tr. 85:20-22.
7
Cohen felt that most of his life his father had micromanaged him; Cohen had found his
father’s controlling nature frustrating, alienating, and contrary to good business practices. App.
57-58; 11/18 Tr. 69:16-70:14. Not wanting the past to be a prologue of the future, trusting
Raymond’s integrity, and feeling sure of their joint purpose, Cohen believed that opening the
account would empower Raymond by allowing Raymond to control the “seed money” for their
business. App. 58; 11/18 Tr. 68:10-17, 69:16-70:14.
Cohen did not tell his stepdaughter Molly, Raymond’s wife, about this account, because
it was “about business,” and Molly was not involved in the business. App. 58; 11/18 Tr. 75:1-
20. For similar reasons he did not tell his wife, Jane. 11/18 Tr. 75:19-20. No documents were
signed between Cohen and Raymond memorializing the terms of the transfer. App. 60.
Consistent with his view of the transfer as not being an unconditional gift, Cohen did not identify
the transfer on his federal gift tax return for 2010. App. 58; 11/18 Tr. 77:7-12.
During this time, Raymond repeatedly expressed to Cohen his dissatisfaction with
employment at Schnitzer and frequently spoke with Cohen about investment ideas that he had.
App. 57-58; 11/18 Tr. 64:1-9, 64:22-65:15. In an effort to break the logical link between his
receipt of $250,000 and their contemporaneous joint travels to recycling plants and potential
business partners, Raymond testified that he had made it clear to Cohen that he did not want to
go into business with him. App. 58. The Superior Court found that this testimony was not
credible. App. 59. The Superior Court specifically found that Cohen and Raymond decided to
enter the recycling business together in some fashion after Cohen’s non-compete expired. App.
59, 60.
Consistent with this purpose, between 2010 and October 2012, the Merrill Lynch
account was very lightly traded. App. 59; 11/19 Tr. 219:12-17. Raymond never
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transferred any funds into or out of the account prior to October 2012. App. 59; 11/19 Tr.
219:18-220:6. When Raymond left Schnitzer in 2011, he took out a home equity loan to
fund a business rather than liquidate funds in the Merrill account.3 11/19 Tr. 255:13-
256:11. He never traded on margin in the Merrill account and did not borrow against it.
App. 59. By contrast, Raymond maintained a personal Ameritrade account that was very
actively traded during this time period. App. 59. The Superior Court found, contrary to
Raymond’s testimony, that Raymond appeared to engage in stock purchases on margin in
his Ameritrade account during this time. App. 59.
Relying on the force of the independent and corroborative evidence presented, the
Superior Court specifically found that Cohen’s purpose in transferring the $250,000 to Raymond
“was to provide ‘seed money’ so that Raymond could invest and obtain capital to go into
business together [with Cohen],” and that “Raymond believed this money was to be segregated
and treated as capital for a business venture with Cohen.” App. 47. The Superior Court found
that both parties’ conduct supported Cohen’s testimony in this regard, including the different
ways that Raymond treated the Merrill Lynch and Ameritrade accounts, and the fact that Cohen
never discussed the account with his stepdaughter Molly, Raymond’s wife. App. 47-48.
In the fall of 2012, Raymond and Molly decided to divorce. App. 58. It was only after
this decision that Raymond took $50,000 out of the Merrill Lynch account and used it for
personal purposes, App. 59, including, in large part, his own cosmetic surgery, 11/18 Tr. 72:16-
18. Because the decision to divorce and the acrimony it produced frustrated the possibility of
Cohen and Raymond ever going into business together, Cohen made a demand for repayment of
the $250,000. App. 58; 11/18 Tr. 72:23-25.
3 Cohen’s non-compete did not expire until 2014. 11/18 Tr. 60:13-61:4.
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The Superior Court found that Cohen’s seeking of repayment only after Raymond and
Cohen’s stepdaughter had begun divorce proceedings suggested that both parties knew the
purpose of the transfer was to facilitate Raymond going into business with Cohen, and once
Raymond decided on divorce, it became apparent to all that a business relationship would not
occur. App. 48. “Under these circumstances,” the Superior Court found, “the purpose of the
transfer was frustrated.” App. 48. When Raymond refused to repay the funds, the suit followed.
In its November 4 Order, the Superior Court quoted at length and incorporated all its
findings from its January 7 Order, in which it had ruled that Cohen was entitled to restitution.
App. 56-60. In addition, in the November 4 Order, the Superior Court specifically found that
Cohen and Raymond, together with Cohen’s son Max Cohen, “discussed and planned on going
to [sic] business together in January 2010 at or near the time the transfer of the $250,000 was
made”; that “Cohen advanced funds to Raymond so that there would be money available to him
to use for the business venture” with Cohen; and that it was “plain from the e-mails and
documents exchanged between the parties that Cohen and Raymond planned to go into business
together at some point when Cohen’s noncompetition agreement expired.” App. 60.
Notwithstanding these additional factual findings, the Court reached a radically different
conclusion in its November 4 Order. The Court determined that it could not find the transfer to
be a conditional gift, as Cohen had, according to the Court, testified that that “a gift is a gift,”
and that he “never made a gift with strings attached.” App. 61, 63. This appeal follows.
SUMMARY OF ARGUMENT
The Superior Court’s November 4 Order should be reversed because the facts adduced at
both hearings and found by the Court admit of only one conclusion: that Cohen’s transfer to
Raymond of $250,000 was in furtherance of a future business venture, that this business venture
did not come to fruition, and that Raymond was therefore unjustly enriched.
10
The Superior Court correctly concluded in its January 7 Order that Cohen was entitled to
restitution in the amount of $250,000. The Superior Court specifically found that Cohen’s
purpose in transferring the funds to Raymond “was to provide ‘seed money’ so that Raymond
could invest and obtain capital to go into business together [with Cohen],” and that “Raymond
believed this money was to be segregated and treated as capital for a business venture with
Cohen.” App. 47. Crucially, at both hearings, with regard to each key contested fact, the Court
concluded that Cohen’s testimony was credible and that Raymond’s was not. App. 43-44, 47-48.
The Superior Court abused its discretion in granting the motion to reconsider, as
Raymond did not demonstrate any points of law or fact that the Superior Court overlooked or
misapprehended in its January 7 Order. But even if granting reconsideration was not an abuse of
discretion, the Superior Court erred in holding in its November 4 Order that the transfer was an
unconditional gift. The law requires examination of manifestations of a donor’s intent in
determining whether a transfer is unconditional, and the Superior Court credited Cohen’s
testimony that the transfer had a specific purpose. The Superior Court’s ultimate legal
conclusion that the transfer was an unconditional gift cannot be squared with this factual finding.
In concluding that Cohen believed that the gift “in this case” was not conditional, App.
61, 63, the Superior Court mischaracterized and misquoted Cohen’s testimony regarding prior
gifts. Even if it had not, the Superior Court should not have read this subset of Cohen’s
testimony—a layperson’s characterization of how he viewed past transfers—as disavowing his
legal claim for unjust enrichment. Cohen’s mindset that the transfer was a “loan” is not legally
dispositive of whether Cohen has a legal claim for unjust enrichment. Put simply, Cohen
reasonably believed that he was entitled to return of the funds and he initiated litigation to
accomplish that goal. He testified that he advanced the funds with the understanding that they
11
would become part of a future business venture with Raymond. On this point, the Court found
Cohen credible. App. 47-48, 60.
The Superior Court further erred in applying a “gift presumption” to the transfer. The
transfer of property without explanation constitutes a loan, and only a transfer of property
between close family members creates a rebuttable presumption that a gift was intended. The
Superior Court erred in considering Cohen and Raymond, whose relationship is that of a step-
father-in-law and step-son-in-law, to be close family members to whom a gift presumption
applies. The New Hampshire Supreme Court has not gone so far as to consider a transfer to a
spouse of a child alone, as opposed to a concurrent transfer to a child and the child’s spouse, to
be subject to a gift presumption. Nor has any court applied a gift presumption to a transfer to a
stepchild or stepchild’s spouse. In the absence of a gift presumption, Raymond did not meet his
burden to prove that the transfer was an unconditional gift. In light of the Superior Court’s
factual findings, the Superior Court should have found for Cohen.
Finally, even if the presumption was correctly applied and the burden was on Cohen to
show that the transfer was not an unconditional gift, or that it was a loan, Cohen met that burden.
The Superior Court’s November 4 Order should be reversed, and this matter remanded
with instructions to enter judgment for the Plaintiff.
STANDARD OF REVIEW
This Court “review[s] a trial court’s application of law to facts de novo.” Blagbrough
Family Realty Trust v. A & T Forest Products, Inc., 155 N.H. 29, 33 (2007) (internal citation
omitted). It “accord[s] deference to a trial court’s findings of historical fact, where those
findings are supported by evidence in the record.” Id. (internal citation omitted). This Court
“defer[s] to the trial court’s judgment on such issues as resolving conflicts in the testimony,
12
measuring the credibility of witnesses, and determining the weight to be given evidence.” Cook
v. Sullivan, 149 N.H. 774, 780 (2003).
ARGUMENT
I. The Evidence Compels the Conclusion that the Funds Were Transferred to
Raymond Subject to the Condition that Raymond Would Use the Funds in a
Business Venture with Cohen, and Such Condition Was Not Met, Hence Raymond
Was Unjustly Enriched.
The Superior Court’s November 4 Order should be reversed because the facts adduced at
both hearings and found by the Court admit of a single conclusion: that Cohen’s transfer to
Raymond of $250,000 was not a gift but was in furtherance of a future business venture.
Because no such business venture ever came to fruition and has now become impossible,
Raymond was unjustly enriched and must repay the funds he received.
A. The Superior Court Correctly Concluded in its January 7 Order that Raymond
Was Required to Make Restitution, and the Evidence Presented at the Hearing on
Reconsideration Was Materially Identical.
In its January 7 Order, the Court concluded, based upon a conditional gift theory, that
Cohen was entitled to restitution in the amount of $250,000. App. 49. The Superior Court
issued this Order following an evidentiary hearing at which both Cohen and Raymond testified,
and the submission of deposition testimony by Steve Yianakopolos, the Merrill Lynch broker.
App. 40-45. The Court made extensive factual findings based upon this testimony. App. 40-45,
47-48. Crucially, with regard to each key contested fact, the Court concluded that Cohen’s
testimony was credible and that Raymond’s testimony was not. App. 43-44, 47-48.
In its January 7 Order, the Superior Court specifically found that Cohen’s purpose in
transferring the $250,000 to Raymond “was to provide ‘seed money’ so that Raymond could
invest and obtain capital to go into business together [with Cohen],” and that “Raymond believed
this money was to be segregated and treated as capital for a business venture with Cohen.” App.
13
47. The Superior Court found that Cohen’s testimony in this regard was supported by both
parties’ conduct, including the different ways that Raymond treated the Merrill and Ameritrade
accounts, and the fact that Cohen never discussed the $250,000 with his stepdaughter Molly,
Raymond’s wife. App. 47-48. In addition, though not specifically identified in the January 7
Order, the Court’s conclusion was supported by Raymond’s use of a home equity line of credit,
rather than the Merrill account, to capitalize his new business. 11/19 Tr. 255:13-256:11.
Following the filing of a motion to reconsider, the Court held a further hearing at
Raymond’s request, at which Cohen and Cohen’s son, Max Cohen, testified. Cohen’s testimony
was substantially identical at both hearings, and Raymond did not testify at the further hearing.
This further hearing also featured the submission of additional documentary evidence by Cohen,
in the form of e-mails, demonstrating Raymond’s lack of credibility when he testified that he had
told Cohen, prior to the transfer, that he had no intent to enter a business venture with him. App.
141-162, 174-186. As discussed in more detail below, the documentary evidence demonstrated
that Cohen, Raymond, Max Cohen, and others were actively discussing going into business
together around the time of the transfer in January 2010. This documentary evidence provided
further support for the Court’s initial findings. Max Cohen’s testimony, also, corroborated the
earlier testimony of Cohen. App. 60; see, e.g., 10/9 Tr. 11:6-14, 13:17-21.
Following this further hearing, the Court issued its November 4 Order. It incorporated all
of its findings from the initial bench trial, including its finding that Cohen had testified truthfully
and that Raymond had not. App. 56-60. The materially identical evidence before the Court on
reconsideration should have compelled the same conclusion as the Court reached in its January 7
Order—that Cohen was entitled to restitution. However, relying principally upon testimony by
Cohen about his past gifting practices—which testimony was misquoted by the Superior Court in
14
its November 4 Order—the Court determined that Cohen did not make a conditional gift, and
that because he had not met his burden to show the transfer was a loan, the Court now viewed the
transfer as an unconditional gift. App. 61, 63. As discussed below, this conclusion was factually
and legally incorrect. Even assuming that the Court had correctly represented Cohen’s
testimony, however, such testimony should not have changed the Court’s original conclusion as
to the nature of the transfer.
B. The Superior Court Erred in Concluding in its November 4 Order that the
Transfer Was an Unconditional Gift.
The Superior Court erred in holding on reconsideration that the transfer was an
unconditional gift. “A valid gift requires a manifest intention of the donor to give and an
unconditional delivery of the thing given. The requisite donative intent can be found by any acts
or words of the donor in which he expresses his intention to make a present gift to the done.”
Pedersen v. Brook, 151 N.H. 65, 68 (2004) (quoting 7 C. DeGrandpre, New Hampshire Practice
Wills, Trusts and Gifts § 34.04, at 440 (2003)). “Whether a gift is conditional or absolute is a
question of the donor’s intent, to be determined from . . . the circumstances.” 38 Am. Jur. 2d
Gifts § 67.
The law requires examination of the objective intent of the donor to determine whether a
transfer was an unconditional gift. The Superior Court specifically found, based on the factual
testimony presented by Cohen and Yianakopolos, that the purpose of the transfer was to provide
seed money for a future business venture. App. 43-45, 47-48. This correct and un-repudiated
factual finding from the January 7 Order, reiterated in the November 4 Order, App. 58-60,
cannot be squared with the Superior Court’s legal conclusion in its November 4 Order holding
the transfer to be an unconditional gift. Because the transfer was to provide seed money for a
future business venture between Cohen and Raymond, there was no manifest intention on the
15
part of Cohen to make an unconditional gift at the time the funds were transferred. The Superior
Court’s factual finding that the transfer had this specific purpose compels the conclusion that the
transfer was not an unconditional gift.
Because the transfer was not an unconditional gift, Raymond has been unjustly enriched
by retaining the funds. The Superior Court should have awarded restitution. Count Two of
Cohen’s Complaint pled a claim for unjust enrichment, for which restitution was the remedy
sought. “To entitle one to restitution, it must be shown that there was unjust enrichment either
through wrongful acts or passive acceptance of a benefit that would be unconscionable to retain.”
Kowalski v. Cedars of Portsmouth Condo. Ass'n, 146 N.H. 130, 133 (2001) (quotation omitted).
The evidence amply demonstrated that the specific purpose of the transfer was frustrated. As a
result, it is unconscionable for Raymond to retain the $250,000, and restitution is required.
Nor was it necessary for the parties to use the word “conditional gift,” or make the
condition on the transfer express, in order for a restitutionary obligation to arise once the purpose
of the transfer was frustrated. In Gilkas v. Nicholis, 96 N.H. 177, 178,(1950), this Court held, in
the context of a donor seeking to recover an engagement ring following termination of the
engagement, that “[t]he basis for recovery is quasi contractual, as it is considered that it is unjust
for a donee to retain the fruit of a broken promise.” The Court explained that “it would be
unusual for the donor to give the engagement ring upon the expressed condition that marriage
was to ensue.” Id. Instead, “[s]uch a condition may be implied in fact or imposed by law in
order to prevent unjust enrichment.” Id. This approach is similar to that employed by other
courts that have held that a conditional gift theory supports an unjust enrichment claim. See,
e.g., Ver Brycke v. Ver Brycke, 843 A.2d 758, 772 (Md. 2004) (holding conditional gift theory
supported both unjust enrichment and promissory estoppel claims, “but ‘conditional gift’ was not
16
itself a separate claim”); Ohmer v. Ohmer, 898 N.E.2d 106, 114 (Ohio Ct. Common Pleas 2008)
(finding “unjust enrichment does not arise with absolute gifts” but when a gift is conditional).
As was the case in Gilkas, here, a transfer was made for a specific purpose. The failure
of the two lay parties, Cohen and Raymond, to memorialize the transfer in a document, or to
agree upon any specific legal label for the transfer—or, as will be discussed below, the fact that
Cohen, a layperson, considered the transfer to be a “loan” rather than a “conditional gift”—does
not change the purpose of the transfer or the conclusion that once that purpose became frustrated,
Raymond was unjustly enriched, and restitution was required.
II. In its November 4 Order, the Superior Court Mischaracterized and Misquoted
Cohen’s Testimony Regarding Prior Gifts and Improperly Relied Upon this
Testimony to Eliminate Cohen’s Unjust Enrichment Claim.
A. The Superior Court Mischaracterized and Misquoted Cohen’s Testimony
Regarding Prior Gifts.
In its November 4 Order, the Superior Court concluded that the transfer was an
unconditional gift. App. 63. It did so notwithstanding the fact that it incorporated wholesale its
factual findings made in its January 7 Order, in which the Court had concluded that the transfer
was a conditional gift. The only factor that the Superior Court identified as the basis for its
change of heart was what the Court perceived as Cohen’s disavowal of a conditional gift theory:
The Court’s January 7, 2014 Order concluding that the gift was conditional was based
upon the Court’s belief that the evidence compelled a conclusion that the $250,000 was
transferred from Cohen to Raymond’s Merrill Lynch account because the parties
intended to go into business together. However, at the October 14, 2014 hearing Cohen
continued to insist4 that the transaction was a loan. At the October 14, 2014 hearing, he
stated that “a gift is a gift” and he “never made a gift with strings attached” . . . .
[Cohen] forthrightly testified that he believed that the gift in this case was not conditional
because “a gift is a gift”.
4 This conclusion would appear to “punish” Cohen for not modifying his prior factual testimony to
conform to the Court’s legal analysis. There is no evidence that Cohen “insisted” that in this case his
transfer of funds to Raymond was a gift with no strings. The Superior Court’s finding from this exchange
that Cohen was insistent on anything other than Raymond’s obligation to return the $250,000 to him lacks
evidentiary support.
17
App. 61, 63 (emphasis added). Unfortunately, the Superior Court both misquoted and
mischaracterized Cohen’s testimony. Further, as discussed in the next section, it improperly
relied upon this testimony to eliminate Cohen’s unjust enrichment claim.
Crucially, the Superior Court misquoted Cohen as saying that he “never made a gift with
strings attached.” In reality, the testimony was as follows:
[Attorney Carey:] . . . Mr. Cohen at no time in your life have you ever made a gift to
anyone that had strings attached to it; isn’t that true?
[Cohen:] A gift is a gift.
[Attorney Carey:] . . . You’ve made gifts of $250,000 to your partner, Max – former
business partner, Max Jewell . . . right?
[Cohen:] It wasn’t the same thing. That’s out of context.
[Attorney Carey:] You gave him $250,000 – land worth $250,000, correct?
[Cohen:] At that time, when I owned half of a piece of commercial property in
Claremont, I went to my accountant and spoke to my accountant concerning the divesture
of my 50 percent share. He analyzed what my best thing to do from terms of tax benefit
would be and he instructed me to do what I did.
[Attorney Carey:] Which was make a gift with no strings attached, right?
[Cohen:] If that’s what he said, yes.
[Attorney Carey:] Okay. And so for none of the gifts you’ve ever given anybody in your
entire life did they had [sic] to do something in order to keep that money that you gave
them, right?
[Cohen:] Well, no. When Max was a child and I gave him allowance, he had conditions
that went along with it.
[Attorney Carey:] Other than the allowance to Max when he was a child, at no time have
you ever put any strings on any gift you’ve ever given to anyone?
[Cohen:] None that I can recollect in my adult life.
18
10/14 Tr. 66:13-67:15. This testimony was followed by a discussion of loans made by Cohen
that were documented with promissory notes. 10/14 Tr. 67:16-68:10. The precise words “never
made a gift with strings attached,” which the Superior Court found was “stated” by Cohen, do
not appear in the transcript, and so this factual finding lacks evidentiary support. See Ellis v.
Candia Trailers & Snow Equipment, Inc., 164 N.H. 457, 466 (2012) (“[W]e will uphold the trial
court's findings of fact and rulings of law unless they lack evidentiary support or constitute a
clear error of law.” (quotation omitted)). The word “strings,” while used three times by Attorney
Carey, was never uttered by Cohen.
The context of Cohen’s testimony, moreover, makes clear that he believed that he was
responding to questions regarding his past history of making gifts and loans to others, not
discussing the transfer to Raymond that was at issue in the case. Cohen had already testified
extensively about his intent with regard to the transfer to Raymond. Cohen had consistently
testified that the transfer was not an unconditional gift, see, e.g., 11/18 Tr. 71:21-72:15, 73:8-13,
77:10-12, 79:22-80:1, 96:17-19, 97:2-6, 97:21-23; 11/19 Tr. 132:8-21, 135:23-136:6, 148:5-12,
but was made so that Cohen and Raymond could pursue a business venture together, see, e.g.,
11/18 Tr. 68:9-17, 70:13-14, 70:23-72:1, 72:9-15, 75:12-14. The above-quoted questioning, by
contrast, inquired into Cohen’s past pattern of behavior, presumably to elucidate that when
Cohen made past gifts, they did not have “strings” attached, and when Cohen made past loans,
they were documented with promissory notes5—all in an effort to show that the transfer to
Raymond was neither a conditional gift nor a loan.
At no point in this quoted exchange, see 10/14 Tr. 66:13-67:15, was Cohen asked about
the transfer to Raymond that was the subject of this suit. Accordingly, Cohen did not, as the
5 Notably, not all prior loans by Cohen were documented. See 11/19 Tr. 136:7-137:3 (describing prior
loan from Cohen to Raymond and Molly that was not documented).
19
Superior Court found, state that “the gift in this case” was not conditional. In finding that Cohen
“forthrightly testified that he believed that the gift in this case was not conditional because ‘a gift
is a gift,’” (emphasis added), the Superior Court badly mischaracterized Cohen’s testimony, and
this finding of fact must be reversed as lacking evidentiary support. Unfortunately, this finding
was the singular finding that the Superior Court employed to distinguish the testimony in the
second trial from that of the first and to reach a different conclusion.
B. The Superior Court Erred in Relying Upon Cohen’s Testimony Regarding Prior
Gifts to Eliminate Cohen’s Unjust Enrichment Claim.
Even if the Superior Court had correctly quoted and recounted Cohen’s testimony,
however, Cohen’s alleged factual statement that he does not make gifts with strings attached
cannot, as the Superior Court held, be read to disavow a legal claim for unjust enrichment based
upon a “conditional gift” theory or otherwise. Rather, Cohen’s alleged statement must be read in
the context of Cohen’s lay mindset that he viewed the transfer as a loan rather than as a
conditional gift. The statement, even if it had been made as quoted, would have been consistent
with Cohen’s testimony at the first trial that he viewed the transfer to Raymond as a loan,
meaning he was to get his money back, and following which the Superior Court concluded that
the transfer was a conditional gift. The Superior Court’s conclusion in its January 7 Order that
restitution was appropriate comported with Cohen’s unjust enrichment claim in Count Two and
with his intention in bringing suit—the return of his $250,000—as well as with the Court’s
factual findings in both Orders that the transfer was for a specific purpose.
Crucially, Cohen’s mindset that he conceptualized the transfer as a loan is not legally
dispositive of whether Cohen has a legal claim for unjust enrichment on a theory of conditional
gift or otherwise. Cohen’s role in this matter was as a factual witness to the circumstances of the
transfer. The Court’s role was to determine the characterization of the transfer by analyzing
20
Cohen’s intent as expressed through the parties’ actions, the exhibits introduced, and the
testimony that the Superior Court credited. It is immaterial what precise term Cohen, a
layperson unfamiliar with the common law’s fine distinctions between loans, on the one hand,
and conditional gifts that require repayment when their purpose is frustrated, on the other, used
in describing the transfer, except insofar as it aids this Court’s legal determination of Cohen’s
intent when making the transfer. If upheld, the Superior Court’s approach would present a trap
for the unwary, resulting in a lay individual’s incorrect or non-nuanced understanding of legal
terms being used to deny that individual the equitable relief to which he or she is entitled.
Cohen did not conceptualize the transfer as a “gift,” because in Cohen’s mind, a “gift” is
an unconditional transfer from one person to another, 10/14 Tr. 66:13-16, and this transfer was
not unconditionally made. Contrary to the Court’s ruling, the above-quoted testimony does not
change the crucial fact that with regard to the transfer from Cohen to Raymond, once the purpose
of the transfer was frustrated, Cohen reasonably expected repayment and Raymond was unjustly
enriched by retaining the $250,000. This is the precise reason he brought suit and included a
claim of unjust enrichment. Cohen’s conception of the transfer as set forth in his testimony,
which was credited by the Court, the testimony of Yianakopolos, the documentary evidence, and
the Court’s other factual findings were all entirely consistent with—even compelled by—the
Superior Court’s ruling in its January 7 Order that the transfer was a conditional gift, as the Court
itself later acknowledged. App. 61.
By contrast, the Superior Court’s conclusion in its November 4 Order that the transfer
was an unconditional gift cannot be squared with such findings, as the facts found by the
Superior Court make clear that there was no manifest intent on the part of Cohen to make an
unconditional gift. See Pedersen, 151 N.H. at 68. Cohen adequately met any burden he faced to
21
demonstrate that the transfer was for the specific purpose of the parties engaging in a future
business venture together, and that it was not an unconditional gift. When that purpose became
frustrated, the money was owed back to Cohen. In denying unjust enrichment, the Superior
Court’s November 4 Order improperly rewarded Raymond, notwithstanding the Superior Court’s
factual findings that Raymond’s testimony was not credible and that Raymond’s understanding
of the transfer was not supported by the evidence presented at both trials. Accordingly, this
Court should reverse the Superior Court’s November 4 Order and remand with instructions to
award restitution to Cohen.
III. The Superior Court Should Not Have Presumed that the Transfer Was A Gift, and
Raymond Did Not Meet His Burden To Establish that the Transfer Was A Gift.
A. No Court Has Applied a Gift Presumption to Gifts to the Spouses of Stepchildren,
and This Court Has Applied a Gift Presumption to Gifts to the Spouses of
Children Only When the Conveyance Was to Both the Child and Child’s Spouse.
The Superior Court further erred in holding that a “presumption of gift” applied to the
transfer. App. 61-62. This error facilitated the Superior Court’s erroneous conclusion that the
transfer was an unconditional gift. As a result, the November 4 Order should be reversed and
remanded with instructions to enter judgment for Cohen.
As the Superior Court correctly held, “a transfer of property without explanation
constitutes a loan.” App. 61 (citing cases). The burden of proof ordinarily rests on the party
who is seeking to establish that the transfer was a gift. 38 Am. Jur. 2d Gifts § 79. However, “[a]
transfer of property between family members creates a rebuttable presumption that a gift was
intended.” Murano v. Murano, 122 N.H. 223, 228 (1982); see Chamberlin v. Chamberlin, 116
N.H. 368, 370 (1976) (“[W]hen, however, the payor of the consideration is related to the
grantees, there is a presumption that the transfer of the property is by way of a gift.”). This so-
called rebuttable “gift presumption” is restricted to transfers to certain close family members,
22
and does not apply to transfers to a friend, however close the friend may be. See, e.g., Barnes v.
Michalski, 925 N.E.2d 323, 337 (Ill. App. 2010) (“The law presumes a gift if someone transfers
property to his or her spouse or family member but not if someone transfers property to a
friend.”).
In its 1976 decision in Chamberlin v. Chamberlin, this Court addressed the issue of intra-
familial property transfers without consideration. Citing Bogert’s Trusts and Trustees, this Court
noted that when property is placed in the name of a related transferee without any consideration
passing from the transferee to the transferor,
[t]here is a presumption that the transfer of the property is by way of a gift. This
presumption is strongest when the grantee is the wife of the payor or a minor child. The
presumption is less strong in the case of an adult son and weaker when a daughter-in-law
is involved. In any event, the presumption can be rebutted.
116 N.H. at 371 (citing G. Bogert, Trusts and Trustees, §§ 459-460 (2d ed. 1964)) (other
citations omitted).
The Superior Court quoted part of this language in ruling that a “weak” presumption of
gift applied to the transfer to Raymond. App. 62. Chamberlin, however, did not actually extend
the presumption to a transfer to the spouse of a child alone, let alone to a transfer to the spouse of
a stepchild alone. In Chamberlin, the parents made a concurrent transfer to a child and the
child’s spouse for the purchase of a farm by the parents, child, and child’s spouse together. 116
N.H. at 369-70. Hence, as Chamberlin noted, a “daughter-in-law [was] involved,” id. at 371
(emphasis added), but was not the sole grantee. The Chamberlin Court scrutinized the
circumstances of the transfer, noting that “the events which surrounded the conveyance in this
case are of major importance in determining the intent of the parties,” and ultimately held that no
gift was intended. Id.
23
Consistent with the facts of Chamberlin, the significant majority of the cases cited in the
current version of Bogert’s Trusts and Trustees in which the presumption of gift has been
extended to transfers made to the spouse of a child involved transfers to both the child and that
child’s spouse. See R. Chester, G. G. Bogert, G. T. Bogert, and A. Hess, Bogert’s Trusts and
Trustees § 460 (Sept. 2014) (citing, e.g., In re Marriage of Kendra, 815 N.E.2d 22 (Ill. App.
2004); D’Uva v. D’Uva, 74 So.2d 889 (Fla. 1954); Grichuhin ex ux. v. Grichuhin, 272 P.2d 141
(Wash. 1954)). In the majority of cases of transfers made solely to a child’s spouse cited in
Bogert’s, the ruling court has come to the opposite conclusion, holding that no presumption of
gift arises. See Jocoy v. Jocoy, 562 S.E.2d 674, 676 (S.C. 2002) (holding that no gift is
presumed to a son-in-law or daughter-in-law, as “[t]he parent-child relationship is easily
distinguishable from that of a parent and a son-in-law or daughter-in-law”); Ryan v. Ryan, 104
So.2d 700, 702 (Ala. 1958) (no presumption of gift in transfer from mother-in-law to son-in-
law); see also Varap v. Varap, 222 N.E. 2d 77 (Ill. App. 1966) (holding that where husband’s
mother provided funds to purchase realty titled in name of husband, wife, and mother,
presumption was of gift to child but not to child’s spouse); But see Somer v. Bogart, 749 S.W.2d
202 (Tex. App. 1988) (applying gift presumption to transfer from parents to son-in-law, in
appeal brought by both daughter and son-in-law).
The Superior Court’s attempt to draw an analogy between the transfer to Raymond and
an earlier transfer by Cohen to pay off the mortgage owed by Raymond and Molly on their
shared home, App. 62, is therefore inapposite. Cohen’s earlier transfer, which the parties do not
dispute was intended as a gift, more closely tracks the majority of cases that have extended a gift
24
presumption to the situation where a parent concurrently transfers funds to a child and child’s
spouse, typically to aid in the purchase of a martial homestead.6
Extending the gift presumption to a transfer made solely to a stepchild’s spouse, on the
other hand, is something no prior reported case has done. And with good reason. As Bogert’s
states, there is no gift presumption “[i]n more remote relationships,” such as between a brother
and sister, or “where uncles or aunts and nephews or nieces are concerned.” Bogert’s Trusts and
Trustees § 460. The reason is that even though “[t]he element of affection is assumed to be
present, . . . it is of less force than in the cases previously discussed, there is no legal duty to
support, and the inference of an advancement is not strong, especially where the payor has closer
relatives than the grantee.” Id. If anything, the relationship to a child’s spouse, or stepchild’s
spouse, is even more remote than the remote relationships Bogert’s identifies as not giving rise to
a gift presumption. Cf. RSA 561:1, II(c), (e) (providing that intestate estate passes to siblings,
nieces and nephews, or even aunts and uncles when there are no closer surviving family
members, but making no provision for the spouses of children or spouses of stepchildren).
This Court should not extend a gift presumption to Cohen’s transfer of $250,000 solely to
Raymond, Cohen’s step-son-in-law, particularly where such transfer was made for business
purposes and Molly, Cohen’s stepdaughter, was entirely unaware of it. App. 58. Moreover,
Bogert’s cites to no case, and counsel is aware of none, that even considers extending the
presumption of a gift to a stepchild, much less to the spouse of a stepchild. Though affection
may be present, a parent has no legal duty to support a stepchild’s spouse. See Bogert’s Trusts
and Trustees § 460. A transfer to a step-son-in-law is so far removed from the close familial
relations at issue in prior cases that the law should presume a loan was made and not a gift.
6 That said, a presumption would not have applied to that transfer, either, because that transfer was to a
stepchild and stepchild’s spouse, rather than to a child and child’s spouse.
25
Simply stated, this Court should refuse to extend the presumption of a gift to the situation where
an individual makes a transfer to his stepchild’s spouse.
B. Raymond Did Not Meet His Burden To Show the Transfer Was an Unconditional
Gift.
In the absence of any presumption that the transfer was a gift, the burden was on
Raymond to prove that the transfer was an unconditional gift. See 38 Am. Jur. 2d Gifts § 79. As
discussed above, “ ‘[a] valid gift requires a manifest intention of the donor to give and an
unconditional delivery of the thing given. The requisite donative intent can be found by any acts
or words of the donor in which he expresses his intention to make a present gift to the donee.’ ”
Pedersen, 151 N.H. at 68 (2004) (quoting 7 C. DeGrandpre, New Hampshire Practice Wills,
Trusts and Gifts § 34.04, at 440 (2003)). Showing that property was transferred is not itself
sufficient to demonstrate a gift. See, e.g., Nashua Trust Co. v. Mosgovian, 97 N.H. 17 (1951)
(“[A] deposit by one in the name of himself or another, or the survivor, is unavailing in and of
itself to give the other any ownership or interest in the account.” (quotation omitted)).
Accordingly, the burden was on Raymond to show that Cohen’s manifest intention was to gift
the funds and that Cohen delivered them unconditionally to Raymond.
This is a burden that Raymond has not met and cannot meet. Raymond chose not to
testify at the second hearing. Because it is Cohen’s intentions that were at issue, the key factual
inquiry is Cohen’s perspective and intent at the time of the transfer in January 2010. See
Pedersen, 151 N.H. at 66, 68. That is, did Cohen have the manifest intention to unconditionally
gift Raymond $250,000 or was the transfer “in furtherance of a future business venture, however
ill-defined”? App 52.
The Superior Court specifically found that “Cohen’s purpose in transferring the $250,000
was to provide ‘seed money’ so Raymond could invest and obtain capital to go into business
26
together [with Cohen],” and that “Raymond believed this money was to be segregated and
treated as capital for a business venture with Cohen.” App. 47. Relying on the testimony of
Yianakopolos, a disinterested third party, the Superior Court similarly found:
Yianakopolos testified that he had a recollection that setting up the account was “in a way
the beginning of their future to possibly do something at some point in time.” He
testified that Cohen and Raymond discussed Cohen’s non-compete and that once it had
expired, Cohen could reenter the recycling business and they could work together.
Yianakopolos understood that the $250,000 “could possibly be used for that enterprise.”
App. 59.
While Raymond testified that the funds were given with “no strings,” the Superior Court
found this testimony not to be credible. App. 58-59. The Superior Court correctly found that
Raymond’s actions did not support his testimony. App. 47, 57-60. Raymond conservatively
managed the Merrill Lynch account, never putting any funds in it or removing funds from it prior
to October 2012, and only engaging in light trading in the account. App. 47-48, 59; 11/19 Tr.
219:12-220:6. In contrast, he deposited and withdrew funds from his separate Ameritrade
account, and contrary to his testimony, appeared to engage in risky margin trading there. App.
47-48, 59. When Raymond sought to capitalize his new business, he used a home equity line of
credit rather than accessing the Merrill Lynch account. 11/19 Tr. 255:13-256:11. Raymond’s
actions, rather than his words, were consistent with Cohen’s understanding: that the funds would
be conservatively managed and available for their future business venture. App. 47-48, 59. It
was only in the shadows of an impending divorce that Raymond used the funds entrusted to him
in a self-serving manner, App. 59; prior to that event, he preserved the funds consistent with
Cohen’s trust and intentions.
The Superior Court also rejected Raymond’s testimony regarding his statements to
Cohen. The very foundation of Raymond’s claim that the transfer was an unconditional gift was
27
his testimony that “he made it clear to Cohen as early as December of 2007 that he did not want
to be in business with him,” App. 58-59, and so, in Raymond’s eyes, the money could not have
been anything other than a gift when Cohen transferred it to Raymond in January 2010. The
Superior Court, however, specifically found that Raymond’s testimony on this point was not
credible, and found in direct contradiction to Raymond’s testimony that “the parties had decided
to enter the recycling business together in some fashion after Cohen’s non-compete expired.”
App. 59. Having crumbled under the heavy weight of its falsity, there was no foundation
remaining on which Raymond could build a case that the transfer was an unconditional gift.
The testimony and evidence presented on reconsideration only further supported the
Superior Court’s initial findings that Cohen and Raymond intended to go into business together
in January 2010. Max Cohen offered unchallenged testimony, corroborating Cohen’s testimony,
that in January 2010, Cohen and Raymond were engaged in earnest business discussions and
scouting ventures about a possible business venture between Cohen, Raymond, Max Cohen, and
others. App. 60; 10/9 Tr. 11:6-14, 13:17-21. Choosing not to testify, Raymond offered no
testimony that resuscitated his earlier flawed testimony. The emails Raymond belatedly offered
contradicted his testimony that he had made clear to Cohen as early as December 2007 that he
was not interested in a “future business relationship” with Cohen and that on his trips with Cohen
he was a mere “tagalong” and “sounding board.”7
Cohen’s and Raymond’s emails bring to life the winter of December 2009 and January
2010, providing the textual backdrop to the Yianakopolos visit. Both Raymond and Cohen were
dissatisfied; Raymond with work at Schnitzer and Cohen with retirement. App. 57-58.
7 11/19 Tr. 175:19-177:9, 180:4-8, 190:2-5. The emails Raymond produced, excerpted at App. 155-186,
were the subject of a subpoena duces tecum that was served as part of an attachment hearing scheduled
for July 30, 2013. They were not produced then and were only produced, following repeated requests, on
August 1, 2014, which was after the first trial.
28
Following previous travels to Germany and various states looking at potential facility sites, a
concept was born that would join the economic and business forces of the Dorfman family,8
Cohen, Raymond, and Max Cohen. The concept: find a facility in the United States, and using
Max Cohen’s contacts in China, export metals from the United States to these new customers.
App. 141-151.
On December 28, 2009, in an email to Max, who was then in China and soon to be
coming home, Cohen wrote that the Dorfmans “would probably be part of the business, as I
could very well be limited by non-compete, and Johnny will need help.” App. 141. Max was to
be returning to the United States on January 17, 2010 and was to return to China on February 5,
2010. App. 144. With Max returning home and a meeting with the Dorfmans in the offing, the
visit to Yianakopolos’ office occurred. The Court’s finding that Cohen advanced the funds as
capital for a future business venture finds additional support in this background.
Driving a further stake in Raymond’s claim that he sought no involvement in any project
with Cohen was Andy Dorfman’s answer to Max Cohen’s inquiry regarding “who will be Mr. X
to start preparing this facility for business once the eventual purchase is made”? Responding to
Max’s question, on March 11, 2010, Dorfman responded, “When we buy property Johnny is
going to leave his job and will work on the new facility[.]” App. 152. This was Cohen’s
understanding when the funds were transferred in January 2010 and throughout the following
years as other deal prospects surfaced and were discussed between Raymond and Cohen.9
8 The Dorfmans were potential business partners who Raymond and Cohen visited when exploring
business opportunities. 9 The emails reveal a chronology of potential deals involving Raymond and Cohen, both prior to and
following the January 2010 transfer:
December 2009-April 2010 – Dorfman/S. Cohen/Raymond/M. Cohen – exporting product to
China. App. 141-154, 155-162, 174. In an email, Cohen writes that, “it is a pleasure to work
with all of you including Johnny.” App. 155. Raymond received broker information related to
proposed facility sites on his gmail account. App. 161-162. For a person who claims to have had
29
In light of the Superior Court’s findings and the overwhelming evidence presented,
Raymond did not meet his burden to show that the transfer was an unconditional gift. Cohen, by
contrast, met any burden he faced to show that the transfer was not an unconditional gift. It
would be unjust and inequitable to permit Raymond to retain the $250,000 under these
circumstances. The Superior Court’s November 4 Order should be reversed.
IV. Cohen Met Any Burden to Show that the Transfer Was Not an Unconditional Gift.
If this Court presumes that the transfer was a gift, and upholds the Superior Court’s ruling
that Cohen has disavowed any claim that the transfer was a conditional gift, the burden is on
Cohen to show that the transfer was not an unconditional gift. As Cohen has met this burden,
this Court should reverse.
For all of the reasons set forth in the prior section, which will not be repeated here, Cohen
presented overwhelming evidence, credited by the Court in its factual findings, that the transfer
was not an unconditional gift from Cohen to Raymond. Regardless of any presumption applied,
that should have been sufficient for Cohen to prevail. See, e.g., Chamberlin, 116 N.H. at 371-72
no interest in a joint venture, Raymond’s declaration that “if we had the dough, this [the
Charlestown site] would be perfect,” is striking. App. 174.
March 2010 – Meyers/S. Cohen/ Raymond. App. 179-180. While Raymond claimed the Meyers
transaction “was nothing about” him, 11/19 Tr. 184:25, the emails point to a different reality.
The email concerning the Ewusiak River Terminal was sent by Meyers directly to Raymond.
App. 179-180.
February-March 2011 – S. Cohen/Raymond/Meyers. App. 175-178. During this email
discussion, Cohen made clear that Raymond “should be involved,” App. 175, and Raymond
forwarded an email requesting that Meyers provide a breakdown of project costs, App. 176.
When Meyers responded, he sent the financial figures directly to Raymond and Cohen with the
salutation “Steve/Jon” and collectively referred to them as “your group,” App. 177-178.
May 2012- S. Cohen/Raymond/Joseph – Southern Shredder. App. 163-173, 181, 185. After their
joint visit to Scott Joseph in May 2012, App. 163-173, Cohen summarizes the trip that explored
the expansion of shredder operations, highlighting that how Joseph decided to use their skills was
a decision that Joseph needed to make, App. 181. Responding, Joseph wrote, “I want you both to
be involved.” App. 185.
May 2012- S.Cohen/Raymond/Joseph – Southern Landfill. App. 182-184. Raymond had the idea
to buy a Georgia landfill. Cohen gave him credit. When Raymond realized that Cohen had sent
the email to the wrong address, he emailed Cohen, conduct at odds with someone who had no
intention to do business with him. App. 184.
30
(applying a gift presumption, but holding, based upon “the events which surrounded the
conveyance,” that the parents “did not intend the conveyance to be a gift,” and not requiring the
parents to show that the parties agreed to any specific interest rate or terms of repayment).
The Superior Court held in its November 4 Order that Cohen’s claim failed, however,
because Cohen failed to prove that he made a loan. It reasoned that while Cohen had
documented prior loans,10
here, there was no agreed-upon interest rate. App. 60-61.
The Superior Court erred, because the terms of agreement need not be explicit. “A
promise may be stated in words either oral or written, or may be inferred wholly or partly from
conduct.” Restatement (Second) of Contracts § 4 (1981). “The terms of a promise or agreement
are those expressed in the language of the parties or implied in fact from other conduct. Both
language and conduct are to be understood in the light of the circumstances, including course of
dealing or usage of trade or course of performance.” Restatement (Second) of Contracts § 5,
cmt. (a) (1981).
Given the ample evidence that Cohen made the transfer under the specific circumstances
described above, and that Raymond accepted the funds under these circumstances, there was
performance and hence an acceptance by Raymond that the transfer was not an unconditional
gift. “A valid offer may propose the exchange of a promise for a performance. An offer may be
accepted by commencement of performance. Consideration is present if there is either a benefit
to the promisor or a detriment to the promisee. In addition, there must be a meeting of the minds
in order to form a valid contract.” Bel Air Assocs. v. N.H. Dep’t of Health & Human Servs., 158
N.H. 104, 107 (2008); Chisholm v. Ultima Nashua Indus. Corp., 150 N.H. 141, 145 (2003) (“A
meeting of the minds is present when the parties assent to the same terms”).
10
Again, not all prior loans by Cohen were documented, a fact the Superior Court neglected to
acknowledge. 11/19 Tr. 136:7-137:3.
31
Although contracts must be definite in order to be enforceable, the standard of
definiteness is one of reasonable certainty and not “pristine preciseness.” Id. at 145. Where the
terms of a contract are reasonably clear, the law will find a valid and enforceable contract.
Chisholm, 150 N.H. at 145 (finding a contract where some of the terms were “not clear or
specific or even complete” but it was “reasonably clear” that the employee agreed to work in
exchange for an annual salary and benefits); see also Panto v. Moore Business Forms, Inc., 130
N.H. 730, 733, 735 (1988) (holding that agreements may be enforceable even though they are
not paradigms of draftsmanship).
Even absent proof of an express oral contract, the court may enforce an agreement
implied at law. Presby v. Bethlehem Village Dist., 120 N.H. 493, 495 (1980) (imposing a
contract for payment of an installed septic system on an implied contract theory even though the
parties had no prior discussions or approval for payment of that septic system); Elliott v.
Standard Acc. Ins. Co., 92 N.H. 505 (1943) (finding oral contract for insurance notwithstanding
fact that some essential contract terms, including duration and premium, were never expressed:
“[a]s to these [essential] elements implication is enough without expression”). Contracts implied
at law, commonly called quasi-contracts, “are ‘legal obligations’ arising, without reference to the
assent of the obligor, from the receipt of a benefit the retention of which is unjust, and requiring
the obligor to make restitution.” State v. Haley, 94 N.H. 69, 72 (1946); 66 Am.Jur.2d Restitution
and Implied Contracts § 2 (1973).
Thus, in determining whether the transfer was intended to give rise to a repayment
obligation if its purpose were to become frustrated, the Court should have looked to the facts and
circumstances surrounding the transfer of Cohen’s funds to Raymond in January 2010 and the
meeting with Yianakopolos. It is clear that the purpose of the transfer was to further a future
32
business venture. While the precise terms of the transfer were undefined, where the parties do
not stipulate necessary terms, such as times and methods for repayment and interest rates, the
Court will supply them.
Just as the Chamberlin Court did not require the parents to show that the parties agreed to
any specific interest rate or terms of repayment, the Superior Court should not have so required
here. Even if the Court determines that the parties did not agree upon the payment of interest or
a specific repayment schedule, that does not preclude the Court from determining that the
$250,000 was due back to Cohen once the establishment of a joint business venture between
Cohen and Raymond had not taken place within a reasonable time. See Restatement (Second) of
Contracts § 204; see also Pennichuck Corp. v. City of Nashua, 152 N.H. 729, 738 (2005)
(explaining contract principles “require that performance must be within a reasonable time where
no time for performance is specified by statute or agreement”); Erin Food Services, Inc. v. Derry
Motel, Inc., 131 N.H. 353, 360 (1988) (setting forth general rule that “contract lacking a
designation of specific time for performance obligates the parties to perform within a reasonable
time”); Hodge v. Me-Bee Co., 240 A.2d 818, 821 (Pa. 1968) (“Because the oral contract covering
the terms of the Hodge loan did not mention interest, appellant relies on the doctrine, admittedly
well established, that there exists a presumption that money loaned bears interest.”); White v.
Poole, 73 N.H. 403, 404 (1905) (if no time is fixed within which an agreed conveyance of land is
to be made, the promisor is entitled to a reasonable time for the performance of his contract); In
re Grand Jury Proceedings, 02-S-1154, 2005 WL 678994, at *4 (N.H. Super. Mar. 22, 2005)
(relying on Restatement (Second) to support position that law provides court may provide “gap-
filler” for contract missing an essential term). This Court should conclude that Cohen has met
33
his burden to show that restitution was required, and should reverse the Superior Court’s
November 4 decision holding otherwise.
V. The Superior Court Should Have Denied the Motion for Reconsideration.
Finally, the November 4 decision should be reversed as the Superior Court abused its
discretion in granting the motion for reconsideration of the January 7 Order. Cohen specifically
asserted a claim for unjust enrichment in his original Complaint, making it well within the
Superior Court’s discretion to find for Cohen on a conditional gift theory. App. 209-210 ¶¶ 29-
33. Moreover, Raymond failed to demonstrate that the Court overlooked or misapprehended
points of law or fact in its initial order, a requirement to prevail on a motion for reconsideration.
See Smith v. Shepard, 144 N.H. 262, 264 (1999); Super Ct. R. 12(e). This Court reviews a
Superior Court’s grant or denial of a motion for reconsideration for abuse of discretion.
Shepard, 144 N.H. at 264.
It was well within the Superior Court’s discretion to resolve this dispute on a conditional
gift theory. Cohen’s original Verified Complaint set forth an unjust enrichment claim in addition
to a breach of contract claim, and the facts supporting the theory of unjust enrichment by
conditional gift were set forth in the Verified Complaint, even if Cohen never used the term
“conditional gift.” App. 206-211. Cohen’s post-trial memorandum, moreover, focused chiefly
on demonstrating that in transferring $250,000 to Raymond, Cohen did not have the manifest
intent to make an (unconditional) gift to him. App. 194-199. Although the terms “conditional”
and “unconditional” were not expressly used at the first trial or in the briefing, the crux of the
dispute between the parties in the first (and second) trial was Raymond’s assertion that the funds
advanced were an unconditional gift and Cohen’s assertion that they were in furtherance of a
future business venture. App. 187-193, 194-199. The Court concluded that Cohen’s conception
of the transfer was credible and that Raymond’s was not, App. 43-44, 47-48, making a finding of
34
unjust enrichment and an award of restitution appropriate and necessary. As discussed above,
“conditional gift” is not itself a cause of action but a theory supporting an unjust enrichment
claim. Accordingly, Count Two of Cohen’s Complaint, together with Cohen’s argument at trial
and in the briefing, provided an ample basis for the Superior Court’s January 7 Order.
Further, where Raymond’s own defense was that the transfer was an unconditional gift,
App. 40, and that defense was not supported by the evidence, App. 47-48, Raymond was not
unfairly prejudiced by the Court’s initial conclusion that the transfer was a conditional gift. Cf.
Kravitz v. Beech Hill Hospital, LLC, 148 N.H. 383, 393 (2002) (setting aside verdict where
“proposed amendment introduced an entirely new cause of action,” the plaintiffs “never pleaded
breach of contract or restitutional damages,” which the jury nevertheless awarded, and claim
could not “be inferred from the pleadings and it was not otherwise referred to by either party
during the trial”). Nor did the conditional gift theory subject Raymond to additional damages or
open up completely new areas of evidence which would not have been required under the
initially argued theories of the case. Cf. Keshishian v. CMC Radiologists, 142 N.H. 168, 176
(1997) (upholding trial court’s denial of motion to amend complaint where proposed amendment
would greatly expand existing claims, “subject the defendants to additional damages” and
“open[] up completely new areas of evidence which would not be required or allowed under the
prior amendment”). The conditional gift theory turned on the same facts adduced at the first trial
to support Cohen’s claims that the transfer was a loan or was otherwise due back to Cohen once
the purpose of the transfer was frustrated, and Raymond’s claim that the transfer was an
unconditional gift.
Furthermore, even after being given the opportunity to conduct additional discovery and
offer additional testimony to the Court, Raymond adduced no new evidence supporting his
35
argument that the transfer was an unconditional gift. Raymond did not testify at the second trial,
and the evidence adduced, principally through the testimony of Max Cohen and the introduction
of numerous emails, only further supported the Superior Court’s earlier conclusion that
Raymond and Cohen intended to go into business together at the time the funds were transferred.
The central issue in the case was Cohen’s intent at the time he transferred the funds to
Raymond. Ultimately, on each core contested fact, the Court found Cohen’s testimony to be
credible, and consistent with that of Yianakopolos, a neutral third-party witness, and the
documentary evidence, while finding Raymond’s testimony to be not credible. App. 43-44, 47-
48; See 38 Am. Jur. 2d Gifts § 67 (“Whether a gift is conditional or absolute is a question of the
donor’s intent, to be determined from . . . the circumstances.”). Viewed at the time, or even in
hindsight following the second bench trial, Raymond did not demonstrate any error of fact or law
in the Superior Court’s January 7 Order. The motion for reconsideration should have been
denied.
CONCLUSION
For the foregoing reasons, the Superior Court’s November 4 Order should be reversed
and this matter remanded with instructions to enter judgment for Plaintiff.
ORAL ARGUMENT
Plaintiff Steven J. Cohen requests oral argument before the full court as this case involves
significant legal issues deserving of the full court’s consideration. Oral argument will be
presented by Benjamin T. Siracusa Hillman, Esq.
SUPERIOR COURT ORDERS
The decisions of the Superior Court are in writing and are appended to this brief.
37
ADDENDUM
CONSTITUTIONAL PROVISIONS, STATUTES, ORDINANCES, RULES OR
REGULATIONS INVOLVED
561:1 Distribution Upon Intestacy. – The real estate and personal estate of every person
deceased, not devised or bequeathed, subject to any homestead right, and liable to be sold by
license from the court of probate in cases provided by law, and personally remaining in the hands
of the administrator on settlement of his or her account, shall descend or be distributed by decree
of the probate court:
I. If the deceased is survived by a spouse, the spouse shall receive:
(a) If there is no surviving issue or parent of the decedent, the entire intestate estate;
(b) If there are surviving issue of the decedent all of whom are issue of the surviving spouse
also, and there are no other issue of the surviving spouse who survive the decedent, the first
$250,000, plus 1/2 of the balance;
(c) If there are no surviving issue of the decedent but the decedent is survived by a parent or
parents, the first $250,000, plus 3/4 of the balance of the intestate estate;
(d) If there are surviving issue of the decedent all of whom are issue of the surviving spouse
also, and the surviving spouse has one or more surviving issue who are not the issue of the
decedent, the first $150,000, plus 1/2 of the balance of the intestate estate;
(e) If there are surviving issue of the decedent one or more of whom are not issue of the
surviving spouse, the first $100,000, plus 1/2 of the intestate estate.
II. The part of the intestate estate not passing to the surviving spouse under paragraph I, or the
entire intestate estate if there is no surviving spouse, passes as follows:
(a) To the issue of the decedent equally if they are all of the same degree of kinship to the
decedent, but if of unequal degree, then those of more remote degree take by representation.
(b) If there are no surviving issue, to the decedent's parent or parents equally.
(c) If there are no surviving issue or parent, to the brothers and sisters and the issue of each
deceased brother or sister by representation; if there is no surviving brother or sister, the issue of
brothers and sisters take equally if they are all of the same degree of kinship to the decedent, but
if of unequal degree then those of more remote degree take by representation.
(d) If there are no surviving issue, parent or issue of a parent but the decedent is survived by
one or more grandparents, one half of the estate passes to the paternal grandparents if both
38
survive or to the surviving paternal grandparent if one paternal grandparent is deceased and the
other half passes to the maternal grandparents in the same manner; or if only one grandparent
survives, such grandparent shall receive the entire estate.
(e) If there are no surviving issue, parent, issue of a parent, or grandparent but there are issue
of the decedent's grandparent who survive, one half of the estate passes to the issue of the
paternal grandparent who are not beyond the fourth degree of kinship to the decedent and said
issue shall take equally if they are all of the same degree of kinship to the decedent, but if of
unequal degree those of more remote degree take by representation, and the other half passes to
the issue of the maternal grandparent who are not beyond the fourth degree of kinship and said
issue shall take equally if they are all of the same degree of kinship to the decedent, but if of
unequal degree those of more remote degree take by representation; provided, however, that if
there are no issue of the decedent's grandparent within the fourth degree of kinship to the
decedent on either the paternal or maternal side, the entire estate passes to the issue on the other
side who are not beyond the fourth degree of kinship to the decedent and said issue shall take
equally if they are all of the same degree of kinship to the decedent, but if of unequal degree
those of more remote degree take by representation.
(f) No portion of a decedent's intestate estate shall pass to any person who is of the fifth or
greater degree of kinship to the decedent.
(g) If there is no taker under the provisions of this section, the intestate estate passes to the
state of New Hampshire.
III. All determinations of survivorship shall be made in accordance with the provisions of
RSA 563.
