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Choiniere v. Marshall

Supreme Court of Vermont

November 7, 2014

Paul H. Choiniere and P& D Consulting, Inc.
v.
Anthony P. Marshall and Harris Beach, PLLC

Motion for Reargument Denied December 23, 2014.

Page 724

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Windsor Unit, Civil Division. Harold E. Eaton, Jr., J.

Reversed and remanded for further proceedings consistent with this decision.

Michael F. Hanley of Plante & Hanley, P.C., White River Junction, for Plaintiffs-Appellants.

Allan R. Keyes and Thomas S. Valente of Ryan Smith & Carbine, Ltd., Rutland, for Defendants-Appellees.

Present: Reiber, C.J., Dooley, Skoglund and Crawford, JJ.,[1] and Pineles, Supr. J. (Ret.), Specially Assigned

OPINION

Page 725

SKOGLUND, J.

[¶1] Plaintiffs Paul Choiniere and P& D Consulting, Inc. sued defendants, attorney Anthony Marshall and his law firm, Harris Beach, PLLC, alleging that they made negligent and intentional misrepresentations while representing a client in a matter involving commercial loan guaranties. Choiniere alleges that he relied upon the misrepresentations when deciding not to call a $1 million loan that he made in September 2003, and P& D Consulting alleges that it relied upon the misrepresentations when deciding to loan an additional $1.3 million in June 2004. We reverse the trial court's decision granting defendants summary judgment.

[¶2] The events underlying this case began in September 2003 when Choiniere loaned $1 million to Andrew Button to help him purchase an automotive dealership and move it to another location. Button's father and stepmother Christine Rowe-Button personally guaranteed the loan. After receiving that loan, Button began negotiating with Choiniere for an additional loan of $1.3 million to acquire two more automobile dealerships. When Button's father died in January 2004, Rowe-Button hired defendant Marshall to assist in settling her late husband's estate and to try and obtain a release of any and all personal guaranties made to Choiniere.

[¶3] On April 8, 2004, after several months of fruitless negotiations between Marshall and Button's attorneys, Marshall arranged for Rowe-Button to send each of the creditors, including Choiniere, a letter captioned " Termination of Guaranty." In the letter she stated that her signature on the guaranty " may not reflect my actual signature thereon," intimating that it may have been forged. Then in bold lettering she wrote:

PLEASE TAKE NOTICE THAT EFFECTIVE AS OF THE DATE OF THIS LETTER, THE ESTATE AND I HEREBY TERMINATE ALL AND ANY GUARANTIES EXECUTED OR PROVIDED OR PURPORTEDLY EXECUTED AND PROVIDED, TO YOU OR YOUR ASSIGNS WITH RESPECT TO ALL AND ANY INDEBTEDNESS OWING TO YOU BY BUTTON HOLDINGS REAL ESTATE, LLC OR ANY AFFILIATE OR OTHER ENTITY, WHETHER EXISTING AT THE TIME OF THE EXECUTION OF THE GUARANTY OR THEREAFTER ARISING.

[¶4] Six days later, on April 14, 2004, Marshall sent a letter to Choiniere with a reference captioned " Termination of Bank Guaranty," in which he acknowledged that Rowe-Button may have some irrevocable obligations pursuant to the terms of the guaranty agreement,[2] but indicated that the letter was to serve as notice that any guaranty would not extend to any new advances or new indebtedness created after receipt of the letter. The attorney representing Choiniere, Douglas Riley, advised him to call the ...


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