
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-2290                                  MARK A. MARCUCCI,                                 Plaintiff, Appellee,                                          v.                                   MARION J. HARDY,                                Defendant, Appellant.                                                                                      ____________________        No. 95-1005                                  MARK A. MARCUCCI,                                Plaintiff, Appellant,                                          v.                                   MARION J. HARDY,                                 Defendant, Appellee.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Martin F. Loughlin, Senior U.S. District Judge]                                          __________________________                                                                                      ____________________                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                                                                      ____________________             John R. Harrington, with whom David F. Conley and Sulloway &             __________________            _______________     __________        Hollis were on brief for defendant.        ______             Charles A. Szypszak, with whom Laura E. Tobin and Orr and Reno,             ___________________            ______________     _____________        P.A. were on brief for plaintiff.        ____                                                                                      ____________________                                  September 20, 1995                                                                                      ____________________                    CYR, Circuit  Judge.   Mark A. Marcucci  initiated this                    CYR, Circuit  Judge.                         ______________          diversity  action in  the United  States District  Court for  the          District of  New Hampshire in  December 1993,  alleging that  his          daughter, Marion  J.  Hardy,  had appropriated  to  her  own  use          approximately $550,000 held in trust  for Marcucci.  Following  a          bench trial, the district  court imposed a constructive trust  on          the proceeds Hardy received  from the sale of the  Marcucci home-          stead and awarded $36,097.54 in attorney fees to Marcucci.  Hardy          appealed.   Marcucci cross-appealed  from a district  court order          rejecting  his claims  to joint  accounts managed  by Hardy.   We          affirm the district court judgment, in part, and reverse in part.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    In the  late 1950s, Marcucci,  owner of a  plumbing and          fuel oil  business, conveyed  the Marcucci "family  homestead" in          Waterbury, Connecticut, and other assets, to his wife, Angela, in          order to insulate their holdings from potential business liabili-          ty claims.  In the  early 1980s, as Marcucci and Angela  advanced          in  years,  they caused  the name  of  their daughter,  Marion J.          Hardy, to be added  to their joint bank and  investment accounts.          Aside from  an $18,000 deposit  by Hardy  in 1987,  all funds  in          these joint accounts derived from Marcucci.                      Although Marcucci,  Angela, and  Hardy continued to  be          listed as  "joint owners," Hardy  took charge  of most  disburse-          ments.  The Marcuccis retained the ability to withdraw funds from                                          2          the joint accounts, but rarely did so.  From time to time, Angela          told  Hardy, in Marcucci's presence,  that some of  the monies in          these  joint accounts  were  intended for  Hardy's personal  use.          When Angela died  in October 1988,  the joint accounts  contained          $364,663.                     Angela left $50,000 in  cash to Constance Waterman, her          other daughter, but the Marcucci homestead and the residue of her          estate went to  Hardy.  Hardy invited Marcucci to  live with her,          first in  Colorado and later in  her New Hampshire home.   All of          Marcucci's  expenses  were  defrayed  by Hardy  with  his  social          security income and with funds disbursed from the joint accounts.          The  DeFeo family,  Hardy's neighbors,  helped care  for Marcucci          while  Hardy was away from  New Hampshire for approximately eigh-          teen months  during Operation  Desert Storm and  while performing          her other military duties.                      In  the summer of 1990,  prior to the  final probate of          Angela's will,  Marcucci learned that the  joint account balances          were  substantially less  than  $364,663.   At  about this  time,          Constance told  Marcucci that  Hardy  was claiming  the right  to          withdraw  funds  from  the  joint accounts.    Although  Marcucci          commented at the time that he would be without substantial assets          unless he contested  Angela's will, he  decided against doing  so          after obtaining legal advice, and the will became final in August          1990.1                                         ____________________               1Marcucci  admits he  knew  the homestead  had been  left to          Hardy by  Angela.  An  April 1989 letter,  which Hardy wrote  for          Marcucci and signed  "Dad," stated that the homestead belonged to                                          3                    Meanwhile, in July 1990,  Hardy had created a revocable          trust  ("Marcucci Family  Trust"), with  $173,801 from  the joint          accounts, retaining sole discretion to make inter vivos distribu-                                                      _____ _____          tions  to Marcucci, the only  beneficiary.  She  showed the trust          instrument  to  Marcucci  and,  with  his  encouragement,  loaned          $150,000  of the trust corpus  to the DeFeo  family, to alleviate          their serious financial  problems.   Six weeks  later the  DeFeos          filed petitions in  bankruptcy and the $150,000 loan  is presumed          uncollectible.   No trust  distributions were either  promised or          made to Marcucci.                      By November 1992, the relationship between Marcucci and          Hardy had deteriorated.  With assistance from Constance, Marcucci          moved  to  a Connecticut  retirement  home and  Hardy  refused to          contribute to his  support until  he returned to  live with  her.          Marcucci,  95 years  old  and virtually  indigent,  is unable  to          afford the retirement home  accommodations.  In July  1993, Hardy          sold the Marcucci homestead, applying the net proceeds ($108,000)          to the mortgage on her New Hampshire home.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   The Hardy Appeal          A.   The Hardy Appeal               ________________                                        ____________________          Hardy.  Marcucci's daughter,  Constance, and her husband, advised          Marcucci  that "the house and cars are [Hardy's]" and that Angela          had  left everything  to Hardy  except for  the $50,000  given to          Constance.  The district  court found that Marcucci knew,  by the          summer of 1990, that substantial amounts  had been withdrawn from          the  joint accounts by Hardy, and that by September 1990 Marcucci          "believed that unless he contested his wife's will, he would have          no substantial assets."                                            4               1.   Constructive Trust               1.   Constructive Trust                    __________________                    Hardy  asserts  three  challenges  to  the constructive          trust imposed on the  homestead proceeds.  First, she  claims the          district court erred in  rejecting her affirmative defenses based          on the statute  of limitations  and laches.   Second, she  argues          that  Marcucci  expressly withdrew  his  claim  to the  homestead          proceeds at trial.   Finally, she contends that  the constructive          trust  ruling was either  based on clearly  erroneous findings of          fact or erroneous conclusions of law.                     a)   Affirmative Defenses                    a)   Affirmative Defenses                         ____________________                    Hardy moved for judgment on  the pleadings, see Fed. R.                                                                ___          Civ.  P. 12(c), on the alternative  grounds that the constructive          trust  claim was barred by  New Hampshire's three-year statute of          limitations,  N.H. Rev. Stat. Ann.    508:4, I  (Supp. 1994); see                                                                        ___          Sullivan v. Marshall,  44 A.2d  433, 434 (N.H.  1945) (claim  for          ________    ________          restitution  against constructive  trustee  time-barred),  or  by          laches.2   The  district court  denied the  motion on  the ground          that Marcucci had no  knowledge, prior to March 1993,  that Hardy          had mishandled or misapplied either joint account funds or  other          Marcucci assets.   Although  the district  court opinion  did not                                        ____________________               2At oral argument, Hardy suggested for the first time that a          Connecticut statute  of limitations applies  to the  constructive          trust  claim.  As this  contention was neither  raised below, nor          seasonably broached on appeal, we deem it waived.  See Clauson v.                                                             ___ _______          Smith, 823 F.2d  660, 666 (1st Cir. 1987).  In  all events, it is          _____          unavailing.  In diversity cases, the federal courts normally look          to the choice-of-law rules of  the forum state, in this case  New          Hampshire.   As  a general  rule, New  Hampshire applies  its own          statute of limitations.  See Keeton v. Hustler Magazine, 549 A.2d                                   ___ ______    ________________          1187, 1191-92 (N.H. 1988).  We believe it would do so here.                                            5          revisit the matter, there can be no doubt that the court rejected          Hardy's affirmative defenses, as the constructive trust claim was          allowed to proceed.3                      Under N.H. Rev. Stat. Ann.   508:4, I (Supp. 1994), the          three-year  limitations  period  commences  when  the  "plaintiff          discovers, or in the exercise of reasonable diligence should have          discovered, the injury or  its causal relationship to the  act or          omission  complained  of."   Whether  a  claimant discovered  the          injury, or  in the exercise  of reasonable diligence  should have          discovered it,  is a  question of fact.   French v.  R.S. Audley,                                                    ______     ____________          Inc., 464 A.2d 279, 282 (N.H. 1983).   Accordingly, we review for          ____          clear  error.  Reilly  v. United States,  863 F.2d 149,  163 (1st                         ______     _____________          Cir. 1988).                      There  is undisputed  evidence that  Constance Waterman          informed  Marcucci in the summer  of 1990 that  Hardy claimed the          right  to withdraw funds from the joint accounts, and that Marcu-          cci  knew that Angela had  left the Marcucci  homestead to Hardy.          Nevertheless,  in the circumstances  presented here     including          the close family relationship,  Marcucci's age and dependency, as          well as the  nature and  purpose of Marcucci's  transfers of  the          homestead  and the joint accounts     Hardy's assertion of rights          in these assets  was not tantamount to  knowledge on the part  of                                        ____________________               3Hardy contends that the failure to make express findings on          her affirmative  defenses necessitates remand.   See, e.g., Touch                                                           ___  ____  _____          v. Master  Unit Die Prods., Inc.,  43 F.3d 754, 757-59  (1st Cir.             _____________________________          1995)  (finding district court  decision "insufficiently clear to          enable  effective  appellate  review").    Unlike  the  situation          presented in Touch,  however, the import of the  district court's                       _____          factual findings in this case plainly signaled its rationale.                                            6          Marcucci that his  daughter was refusing  to recognize and  honor          his  own beneficial  interest in  the assets.   Further,  Hardy's          conduct  served to toll the limitations  period by engendering in          Marcucci  a reasonable  sense of  confidence which  disguised the          need for  any legal action.   See New Hampshire Donuts  v. Skipi-                                        ___ ____________________     ______          taris, 533 A.2d 351, 356 (N.H. 1987).             _____                    For more than  four years     October 1988 to  November          1992     Hardy  took care  of Marcucci  in her  Colorado and  New          Hampshire homes.  She  informed him that she had  established the          "Marcucci Family  Trust," with Marcucci as  its sole beneficiary,          and  consulted with him before  making the DeFeo  loan from trust          monies.   These actions were  entirely consistent with  an extant          trustee-beneficiary  relationship,  and, whether  so  intended or          not,  sufficed  to  provide  a reasonable  basis  for  rekindling          Marcucci's confidence  in Hardy, especially in light of the close          family  relationship and  his advanced  age and  highly dependent          state.   Thus,  the district  court  record clearly  warrants the          conclusion that  Marcucci neither knew, nor  should he reasonably          have believed,  that his  daughter claimed outright  ownership of          the Marcucci homestead.                      In July  1993, however,  Hardy sold the  Marcucci home-          stead and applied  the proceeds  toward the mortgage  on her  New          Hampshire  residence, conduct  which unequivocally  announced her          open, adverse claim to the entire Marcucci homestead.  Within six          months  thereafter,  Marcucci   initiated  the  present   action.          Accordingly, we agree with the district court that the action was                                          7          not time-barred,  either by the New Hampshire  statute of limita-          tions or laches.4                     b)   Withdrawal of Homestead Claim                    b)   Withdrawal of Homestead Claim                         _____________________________                    During  closing  argument,  Marcucci's   trial  counsel          stated:   "we are not asking in this proceeding for return of the          home."  Hardy frivolously contends that Marcucci thereby withdrew          his claim to the  homestead proceeds.  Construed in  context, the                                      ________          language employed  by counsel  simply reflected the  reality that          the homestead had been sold to a third party; thus, a claim could          only be asserted against the sale proceeds.5                    c)   The Merits                    c)   The Merits                         __________                    Hardy next  contends that the  district court misinter-          preted New  Hampshire  law  as permitting  the  imposition  of  a          constructive  trust in these  circumstances.  She  argues that it          was error to do so absent an express promise by Hardy to reconvey                                       _______          the homestead  to Marcucci.  We  do not agree.   There was suffi-                                        ____________________               4Under  the doctrine of laches,  a limitations period may be          foreshortened  if "unreasonable" and  unexplained delay in filing          an  equitable claim has prejudiced  the defendant.   See Jenot v.                                                               ___ _____          White Mountain Acceptance Corp., 474 A.2d 1382, 1387 (N.H. 1984);          _______________________________          O'Grady v.  Deery,  45 A.2d  295, 297  (N.H. 1946).   The  laches          _______     _____          defense  does not lie, however,  if the defendant  has "caused or          contributed" to the delay.  See New Hampshire Donuts, 533 A.2d at                                      ___ ____________________          356.                 5The  cases  cited by  Hardy  are totally  inapposite.   See                                                                        ___          Hoffer v. Morrow, 797 F.2d 348, 350 (7th Cir.  1986) (noting that          ______    ______          a  criminal defendant may waive a double jeopardy claim by plead-          ing guilty); Flannery  v. Carroll,  676 F.2d 126,  132 (5th  Cir.                       ________     _______          1982) (observing  that plaintiff may waive a particular theory of          liability by choosing  not to plead it);  American Locomotive Co.                                                    _______________________          v. Gyro Process Co., 185 F.2d 316, 318-19 (6th Cir. 1950) (noting             ________________          that  defendant may  waive  contractual right  to arbitration  by          failing,  for seven-year  period, to  move  for stay  of judicial          proceedings to permit arbitration).                                            8          cient  circumstantial  evidence  alone to  support  a  reasonable          inference that  there had  been an  implicit promise  to reconvey          based on the intra-family nature of the transfer from Marcucci to          his wife, Angela.  See Pleakas v. Juris, 224 A.2d 74, 78-79 (N.H.                             ___ _______    _____          1966) (the promise to reconvey may be inferred from the surround-          ing circumstances, including the relationship between the parties          and the  potential for  unjust enrichment).6   Moreover, Angela's          devise of the  homestead to  Hardy remained subject  to the  con-          structive trust impressed  upon it at the  time Marcucci conveyed          it to Angela.7   Angela therefore held the homestead in trust for          Marcucci, and it was devised to Hardy subject to that trust.  See                                                _______ __ ____ _____   ___          generally  4 Austin W.  Scott & William  F. Fratcher, The  Law of          _________                                             ___________          Trusts   289.1  (4th ed.  1989) [hereinafter:   Scott on  Trusts]          ______                                          ________________          (noting  that "[d]evisee takes subject to a trust because one who                                        ____________________               6We likewise  reject Hardy's  contention that  the homestead          was  not impressed with a constructive trust when she received it          from her mother,  because the  reason for its  conveyance to  her          mother    Marcucci's desire to insulate it from business liabili-          ty claims    ceased when Marcucci retired.  First, the premise is          dubious, since it is  by no means clear that  Marcucci's business          liability exposure would  cease at retirement,  at least as  con-          cerns pre-retirement  activity.  Second, it  seems more consonant          with the  intent of  the  parties that  once the  reason for  the          transfer  no  longer remained  viable,  reconveyance  to Marcucci          should obtain,  particularly since unjust enrichment  is the core          ______          consideration  in the  constructive trust  analysis.   See, e.g.,                                                                 ___  ____          Cornwell v. Cornwell, 356 A.2d 683, 686 (N.H. 1976).          ________    ________               7Hardy maintains  that  Marcucci subsequently  released  her          from any obligation  to reconvey.   She points  to his  testimony          that, "as  long as [the house]  was given to Marion,  I say [sic]          it's okay  as long as Marion's going to  take care of me the rest          of  my life."    On the  contrary,  this testimony  bolsters  the          district court finding that Marcucci was prepared to permit Hardy          to  retain title to  the homestead in  trust only as  long as she          continued to care for him.                                          9          pays no value for  the trust property would be  unjustly enriched          at the  beneficiary's expense  if the  trustee were  permitted to          keep  it");  see also  Herman v.  Edington,  118 N.E.2d  865, 869                       ___ ____  ______     ________          (Mass.  1954) (holding that one  who takes trust property without          consideration,  and  either with  or  without  notice, becomes  a          trustee herself).8   The court  did not abuse  its discretion  in          imposing a constructive trust on the homestead proceeds.               2.   Attorney Fees                2.   Attorney Fees                    _____________                    Marcucci  asserted a  demand for  attorney fees  in the          complaint,  which Hardy  opposed in her  answer.   Hardy contends          that  the  district court  improperly  awarded  attorney fees  to          Marcucci  since her defenses were  not frivolous and  she did not          litigate in  bad faith.   The  appellate record discloses  little          insight  into the rationale for the district court award, nor did          Hardy  request elucidation  or  reconsideration  by the  district          court.                      The  district court cited to Harkeem v. Adams, 377 A.2d                                                 _______    _____          617, 619-20 (N.H. 1977),  which held that unreasonable litigation          tactics which unnecessarily prolong litigation can constitute bad          faith  even  though  the  litigation position  was  not  entirely          frivolous.   See Marcucci v. Hardy, No. C-93-645-L, at 14 (D.N.H.                       ___ ________    _____                                        ____________________               8Hardy attempts to challenge  two district court findings of          fact:  (1) that the threat of liability suits was the impetus for          the  transfer of the homestead  from Marcucci to  Angela; and (2)          the  entire  homestead (rather  than  a  mere half-interest)  was          transferred.   Although  Hardy asserts,  conclusorily,  that  she          challenged these  findings below, the appellate  record indicates          otherwise.  Thus,  these claims  were waived.   See Clauson,  823                                                          ___ _______          F.2d at 666.                                          10          Nov.16,  1994).  Hardy's failure  to challenge the  ruling in the          district court deprives us of the benefit of the district court's          rationale.  Nonetheless, absent district  court findings suggest-          ing any adequate  basis for departing from the so-called American          Rule, BTZ, Inc. v. Great Northern Nekoosa Corp., 47 F.3d 463, 465                _________    ____________________________          (1st Cir. 1995) (noting,  as a general rule, that  litigants must          bear  their  own attorney  fees  absent  statutory authority,  or          agreement, to the contrary), and since we are unable to discern a          sufficient basis for doing so on the present record, the attorney          fee award must be vacated.9          B.   Marcucci Cross-Appeal          B.   Marcucci Cross-Appeal               _____________________               1.   Joint Accounts               1.   Joint Accounts                    ______________                    Marcucci  cross-appeals from  the district  court order          disallowing his claims to  the joint accounts.  He  contends that          he  established exclusive  title to  the accounts  "converted" by          Hardy,  and, alternatively, that he  was entitled to  have a con-          structive trust imposed  on the accounts, lest Hardy  be unjustly          enriched.10                    a)   Conversion Claim                    a)   Conversion Claim                         ________________                                        ____________________               9The citation  to Harkeem, supra, cannot  suffice, since the                                 _______  _____          district court articulated no basis upon which Hardy's litigation          tactics could  be found impermissibly obdurate,  noting only that          _______          the  lawsuit should never have "wended its way to federal court."               _______          See also Touch, 43 F.3d at 757-59 (discussed supra note 3).  This          ___ ____ _____                               _____          seems  to us  altogether inadequate  to take  this case  out from          under the American Rule.  On this record, therefore, the attorney          fee award must be vacated.               10Marcucci's  alternative  "claim" to  an  accounting fails,          since  the district court supportably found  that Hardy had exer-          cised due  diligence in  reconstructing the relevant  activity in          the joint accounts.                                          11                    Although the  district court did not  state its grounds          for  rejecting the conversion claim, the rationale is clear.  "An          action for  conversion is based  on the  defendant's exercise  of          dominion or  control over  goods which  is inconsistent with  the          rights of the person entitled  to immediate possession."   Rinden                                                                     ______          v. Hicks, 408 A.2d 417, 418 (N.H. 1979).  The right to possession             _____          is a key element, see,  e.g., McGranahan v. Dahar, 408  A.2d 121,                            ___   ____  __________    _____          126 (N.H. 1979), which  the claimant must establish.   See Wujno-                                                                 ___ ______          vich  v. Colcord,  202  A.2d 484,  485  (N.H. 1964)  (to  recover          ________________          property  allegedly  converted, plaintiff  had burden  of proving          title).11                    The  district court  rejected the  all-or-nothing posi-          tions  advanced by both parties    that each held exclusive title          to the accounts notwithstanding their  joint status.12  It  found                                        ____________________               11Under  the  law  of  all  three  jurisdictions conceivably          applicable  to this claim, intent is the central factor in deter-                                     ______          mining  entitlement  to  funds  held  in  joint  accounts.    See                                                                        ___          Grodzicki v. Grodzicki, 226 A.2d 656, 657 (Conn. 1967) (intent of          _________    _________          original owner  of  mutual  account is  an  essential  factor  in          determining rights  to  account); Blanchette  v. Blanchette,  287                                            __________     __________          N.E.2d  459, 461 (Mass.  1972) ("In  disputes arising  while both          parties to a joint bank account are still alive we have frequent-          ly  upheld allegations or findings that there was no donative in-          tent."); In re Wszolek Estate, 295 A.2d 444, 447 (N.H.  1972) (to                   ____________________          establish  inter vivos  gift  of joint  accounts, plaintiff  must                     _____ _____          prove donative intent and delivery of accounts).               12Although Marcucci notes that his business was the original          "source" of  most of these  funds, he cites no  authority for the          view that  this conclusively  established his entitlement  to all          the funds  once the joint accounts  had been placed  in all three          names.   On the other hand,  Hardy argued that the  mere fact the          funds were  held in three names  entitled her to withdraw  all of          the funds, foreclosing  any possibility of  conversion.  But  the          form of the accounts  is not conclusive evidence of  their owner-          ship where, as here,  there is evidence of contrary  intent.  See                                                                        ___          New Hampshire Sav. Bank v. McMullen, 185 A. 158, 160 (N.H. 1936).          _______________________    ________                                          12          that "Mrs.  Marcucci stated  repeatedly and openly,  sometimes in          [Marcucci's] presence,  that she had  given money to  [Hardy] and          that  she  wanted  [Hardy] to  use  it  for  her own  enjoyment."          Marcucci, order at 5-6;  see Dover Coop. Bank v.  Tobin's Estate,          ________                 ___ ________________     ______________          166 A.  247 (N.H.  1933) (noting  that gift  of bank  accounts is          established by  proof of donor's manifest intent to make uncondi-          tional delivery, and donee's acceptance).   Not only did Marcucci          fail to  establish his ownership  of all  the funds in  the joint                                               ___          accounts,  Wujnovich, 202  A.2d at  485, but  the district  court                     _________          found that he failed  to show that any ascertainable  portion had                                                 _____________  _______ ___          not been intended  as a gift to  Hardy.  Further, Hardy  expended          ___ ____ ________          "substantial  amounts" for  Marcucci's  benefit.13   Given  these          supportable findings,  we cannot fault the  district court ruling          that  it may well have been speculative to conclude that Marcucci          sustained any damages; and  that the amount of any  damages could                                               ______          only  have  been arrived  at through  conjecture.   See  Robie v.                                                              ___  _____          Ofgant, 306 F.2d  656, 660  (1st Cir. 1962)  ("[D]amages must  be          ______          proven, that  is, they must  not be speculative,  and [plaintiff]          must not be made more than whole.").  The district  court did not          err in dismissing the conversion claim.                                        ____________________               13The  district court  found  that the  joint accounts  held          $364,663  at  the time  of Angela's  death  in October  1988; the          $150,000 loan to the  DeFeos was motivated in part  by Marcucci's          gratitude  to the  people who  had cared  for him  during Hardy's          absence; Hardy "paid all common  living expenses and all particu-          lar living  expenses" not  covered by Marcucci's  social security          benefits.  Hardy also used $173,000 from a joint account to buy a          home in Colorado,  where Marcucci lived until Hardy  and Marcucci          relocated to New Hampshire.                                            13                    b)   Constructive Trust                    b)   Constructive Trust                         __________________                    Alternatively,  Marcucci  claims  that  a  constructive          trust should have been impressed to preclude unjust enrichment of          Hardy.  We review  for abuse of discretion.   Texaco Puerto Rico,                                                        ___________________          Inc.,  v. Department of Consumer  Affairs, 60 F.3d  867, 874 (1st          ____      _______________________________          Cir.  1995) (citations  omitted).   Marcucci therefore  must show          that  the district  court's rejection  of the  constructive trust          claim constituted "a serious lapse in judgment."  Id. at 875.                                                              ___                    Although the  record reflects  that all but  $18,000 in          the joint accounts (deposited by Hardy) derived from Marcucci, it          is equally clear that  large sums were expended for  his benefit.          Moreover,  the  district  court  supportably  found  that  Angela          intended to  give  Hardy  an unspecified  portion  of  the  joint                                       ___________  _______          accounts for her exclusive use, Marcucci was  present when Angela          declared her donative intent, and he knew that Hardy was handling          the joint accounts.                      A constructive trust may  be created where the particu-          lar confidential or  fiduciary relationship would give  rise to a          significant  potential for  unjust  enrichment  absent  equitable          relief.  See  Carroll v. Daigle,  463 A.2d 885, 888  (N.H. 1983).                   ___  _______    ______          The district court supportably found that Hardy used approximate-          ly  $173,000 to purchase property for herself in Colorado and the          record  would support findings  that Angela  had given  Hardy the          money for the house and that Marcucci derived benefit from living          there with Hardy.   Since a substantial portion of  the remainder          had been used for  Marcucci's own benefit, or their  mutual bene-                                          14          fit, and it  was impossible to determine how  much each was enti-          tled to receive, we find no abuse of discretion.                 2.   "Marcucci Family Trust"                2.   "Marcucci Family Trust"                     _____________________                    Finally,   Marcucci  argues  that  Hardy  breached  her          fiduciary duty,  under the so-called "prudent  man" standard, see                                                                        ___          N.H.  Rev. Stat.  Ann. 564-A:3,  I (1974), by  improperly lending          $150,000  from the Marcucci Family Trust to the DeFeo family, and          that she  is chargeable with the  loss.  Hardy responds  that her          withdrawal of  funds from  a revocable  trust constituted  a con-          structive revocation of the trust, (2) Marcucci consented to this          allocation of trust funds, and  (3) the allocation was reasonable          and did not violate the "prudent man" standard.                    We need  not consider whether Hardy  violated the "pru-          dent man" standard, because the district court  found that Marcu-          cci  actively  encouraged the  $150,000 loan  to  the DeFeos.   A          trustee is not liable to a beneficiary for breach of trust if the          beneficiary  consented to  the action.   Restatement  (Second) of          Trusts    216(1) (1957) (endorsing estoppel  rationale); Mahle v.                                                                   _____          First Nat'l Bank of Peoria, 610 N.E.2d 115, 116-17  (Ill.App.3d.)          __________________________          (beneficiary consented  to risky  loan to nephew),  cert. denied,                                                              _____ ______          622 N.E.2d 1209  (Ill. 1993).  There is ample evidence to support          the finding that  Marcucci consented to  the $150,000 loan,  with          the knowledge that  the DeFeos were about to  lose their own home          due  to financial  problems.   Thus,  we  find that  Marcucci  is          estopped  from challenging  Hardy's  decision to  make the  DeFeo          loans.                                            15                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    The district court judgment is affirmed, except for the                    The district court judgment is affirmed, except for the                    _______________________________________________________          attorney fee award, which  is vacated.  Costs are  awarded to the          attorney fee award, which  is vacated.  Costs are  awarded to the          _____________________________________   _________________________          respective appellees in Nos. 94-2290 and 95-1005.  So ordered.           respective appellees in Nos. 94-2290 and 95-1005.  So ordered.           ________________________________________________   __________                                          16
