Baldi v. John T. Broderick, Jr., et al

Filing 142

ORDER taking under advisement 131 Motion for Writ of scire facias. The parties to file supplemental memoranda within 14 days. So Ordered by Judge Paul J. Barbadoro.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Ronald and Gail Brown
v.

Civil No. 04-cv-466-PB
Opinion No. 2017 DNH 095

John A. Baldi

MEMORANDUM AND ORDER
Ronald and Gail Brown have applied for a writ of scire
facias in an effort to collect on a 2007 judgment against John
Baldi.1

I.

FACTS2

John and Catherine Baldi at one time jointly owned land in
Epsom, New Hampshire that abutted property owned by Raymond and
Beryl Dow.

In 1995, the Dows orally agreed to transfer part of

their land (the “24-Acre Parcel”) to the Baldis in exchange for
the Baldis’ agreement to allow the Dows to cut trees on a

Writs of scire facias are not issued by federal courts but the
same relief may be obtained through an appropriate motion. Fed.
R. Civ. P. 81(b). Accordingly, I treat the Browns’ motion as a
request for a writ of execution.
1

I draw the facts from the parties’ proffers. If any fact cited
in this Memorandum and Order remains in genuine dispute, the
party challenging the fact shall explain why it is disputed in a
memorandum filed within 14 days.
2

portion of the Baldis’ property.

The parties agreed to make the

transfer by means of a boundary line adjustment.

A plan

depicting the proposed boundary line adjustment was subsequently
approved by the Epsom Planning Board and filed in the Registry
of Deeds on May 18, 1995.

Although no deed effecting the

transfer was prepared at that time, the Baldis thereafter paid
all property taxes on the 24-Acre Parcel and treated it as their
own in all respects.
Several years later, on November 2, 2004, Baldi recorded a
deed conveying his interest in the 24-Acre Parcel to his wife
for nominal consideration.

More than ten years later, on June

13 2015, Baldi obtained a quitclaim deed from the Dows
purportedly transferring any interest the Dows had in the 24Acre Parcel to the Baldis as joint tenants.

Baldi has explained

that he obtained the deed to remove any uncertainty as to his
wife’s ownership of the 24-Acre Parcel.
I held a hearing on the Browns’ motion for writ of scire
facias on January 24, 2017.

Baldi appeared at the hearing and

presented several arguments as to why the renewed writ of
execution should not issue.

I rejected all of his arguments

except his claim that the writ should not issue because he did

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not have an ownership interest in the property that the Browns
are targeting with their request.3

II.

STANDARD OF REVIEW

Writs of execution are authorized by Federal Rule of Civil
Procedure 69(a)(1), which provides that the procedure on
execution in federal court to collect a monetary judgment
ordinarily “must accord with the procedure of the state where
the court is located.”

New Hampshire law states that writs of

execution may be awarded more than two years after a judgment
issues “upon scire facias for the amount then due.”
Stat. Ann. § 527:7.

N.H. Rev.

“Scire facias is a judicial writ directing

a judgment debtor to appear and show cause why, after the lapse
of the limitation period, execution against him should not be
revived.”

McBurney v. Shaw, 148 N.H. 248, 251 (2002) (emphasis

omitted).

I therefore evaluate the Browns’ motion using the

scire facias process specified in New Hampshire law.

To the extent that Baldi does not have an interest in the
property that will be encumbered if the writ of execution
issues, it is unclear whether he has standing to challenge an
attempt to levy on the property. Rather than analyze the issue
without briefing, I merely assume that Baldi has standing and
move on to consider his substantive argument.
3

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III.

ANALYSIS

The principal question in this case is whether Baldi
currently has an interest in the 24-Acre Parcel that can be the
target of a writ of execution.4

Unsurprisingly, the parties have

different perspectives on the issue.

Baldi argues that the Dows

gave up their interest in the 24-Acre Parcel in 1995 when they

Baldi has responded to the Browns’ request for a renewed writ
of execution with a variety of unpersuasive arguments. He
launched an unsuccessful effort to have the judgment set aside,
which I rejected during the January 24, 2017, hearing. He
invoked the inapplicable fraudulent conveyance statute of
limitation in arguing that I lacked jurisdiction to hear the
Browns’ request, see Doc. No. 133 ¶¶ 5–6, Doc No. 135 ¶ 11, and
he incorrectly claimed that the Browns cannot bring their
request because they settled a legal malpractice claim against
their former lawyer for failing to pursue a fraudulent
conveyance action against Baldi, see Doc. No. 137-1 at ¶¶ 2–5.
My reasons for rejecting those arguments are obvious and do not
require explanation.
4

Baldi also implicitly contends that the Browns are not
entitled to a new writ of execution because their attachment on
the 24-Acre Parcel is invalid. Baldi fails to explain, however,
how a determination that the attachment is invalid will affect
the Browns’ current motion. Accordingly, I decline to consider
Baldi’s challenges to the attachment, which in any event should
be brought by a separate motion.
Baldi’s only remaining argument is his claim that the
Browns are not entitled to a writ of execution because Baldi has
no property that could be a proper subject of the writ. The
Browns respond by arguing that Baldi currently holds a property
interest in the 24-Acre Parcel that can be used to satisfy the
judgment. In addressing this argument, I assume, for purposes
of analysis only, that a court can refuse to reissue a writ of
execution if the court determines that the judgment debtor has
no assets that can be used to satisfy the judgment.
4

agreed to the boundary line adjustment plan.

At that point,

Baldi claims, he and his wife owned the property as joint
tenants.

As Baldi sees it, he conveyed his interest in the

property to his wife in 2004 and the 2015 Quitclaim Deed did not
give him any new interest in the property because, at that
point, the Dows had no interest in the property to convey.

The

Browns contend that the Dows did not surrender their ownership
interest in the 24-Acre Parcel in 1995 because the conveyance
was never completed through the delivery and acceptance of a
properly drafted deed.

Accordingly, the Browns argue that Baldi

did not obtain an interest in the 24-Acre Parcel until the Dows
deeded him that interest in 2015.

Because Baldi still holds

that interest, the Browns argue, it is an appropriate target for
their attempt to collect on their judgment.
New Hampshire law favors the Browns on this specific point.
Although the Dows attempted to convey the 24-Acre Parcel by
means of a boundary line agreement, the statute authorizing
boundary line agreements permits them only when the location of
a boundary line is in genuine dispute.
§§ 472:1, 4.

See N.H. Rev. Stat. Ann.

As the leading treatise on the subject notes, “[a]

boundary line agreement is a clarification of existing property
rights — not an agreement to adjust a boundary to a more
preferable configuration, or a swap of a part of one property
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for part of another.”

17-10 Charles Szypszak, New Hampshire

Practice: Real Estate § 10.01 (2017).
What the Baldis and the Dows attempted to accomplish was a
conveyance.
deed.

Real estate, however, must be conveyed by a written

See N.H. Rev. Stat. Ann. §§ 477:1, 15.

In contrast, an

oral conveyance, which is what occurred here, gives the
beneficiary only an estate at will.
477:15.

See N.H. Rev. Stat. Ann. §

Thus, the parties’ 1995 oral agreement to transfer the

24-Acre Parcel from the Dows to the Baldis was not completed
until the 2015 Quitclaim Deed was issued.

Before then, the Dows

retained their ownership of the 24-Acre Parcel subject to both
an estate at will benefitting the Baldis and the Baldis’
inchoate right to acquire title at a later date.5

The 2015

Quitclaim Deed thus transferred the Dows’ remaining ownership
interest in the 24-Acre Parcel to the Baldis.
Although I agree with the Browns that the Dows did not
effectively transfer their interest in the 24-Acre Parcel to the

To the extent that Baldi argues that the boundary line
adjustment plan is a deed, his argument fails. “A deed must
contain an indication of the grantor’s intent that the land is
being conveyed.” 17-5 Charles Szypszak, New Hampshire Practice:
Real Estate § 5.05 (2017). The boundary line adjustment plan
cannot qualify as a deed under this test because it merely
subdivides the Dows’ land and reflects their intention to
transfer the 24-Acre Parcel to the Baldis at some unspecified
point in the future.
5

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Baldis until they executed and delivered the 2015 Quitclaim
Deed, I remain unconvinced that Baldi currently holds an
interest in the property that may be used to satisfy the Browns’
judgment.

Baldi conveyed his interest in the 24-Acre Parcel to

his wife in 2004.

It is therefore at least arguable that any

interest Baldi acquired by virtue of the Dows’ 2015 Quitclaim
Deed passed to his wife.

See generally White v. Ford, 124 N.H.

452, 454–55 (1984) (per curiam) (applying estoppel-by-deed
doctrine); Fadili v. Deutsche Bank Nat. Trust Co., 772 F.3d 951,
954–55 (1st Cir. 2014).

If Baldi’s interest did pass to his

wife, he does not now have a property interest in the 24-Acre
Parcel that can be used to satisfy the judgment against him.
Because this issue has not yet been briefed, I direct the
parties to file memoranda addressing this issue within 14 days.6
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
May 19, 2017
cc:

John A. Baldi, pro se
John P. Fagan, Esq.

To the extent that Baldi has raised additional arguments in his
filings, his arguments are obviously meritless and do not
require analysis.
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