The defendant, Doris Jaskunas, appeals from an order of the Superior Court {Lems, J.) granting summary judgment in favor of the plaintiffs, Kevin and Susan Coco, and awarding them attorney’s fees incurred in defending the title to land that they purchased from the defendant. We affirm.
This case is related to
Porter v. Coco,
In 2005, the trial court granted summary judgment in favor of the plaintiffs in the Porters’ quiet title action against them on the basis of res judicata arising from a 1982 quiet title action brought by the defendant. The trial court then granted the defendant’s motion to dismiss this action against her. The trial court reasoned that the warranty deed required the defendant to defend against only “lawful claims,” and, because the Porters’ claim was unfounded, the defendant was not liable for the plaintiffs’ legal fees.
On appeal, however, we reversed the trial court’s grant of summary judgment to the plaintiffs in the suit the Porters filed against them.
Porter,
*518 On the eve of trial, the Porters and the plaintiffs reached a non-monetary settlement wherein they divided the disputed land between them. The defendant and her counsel were kept apprised of the settlement negotiations, but did not participate in them. The court approved the Porter-Coco settlement in April 2007.
The parties then filed cross-motions for summary judgment in the present case on the issue of the defendant’s liability for the plaintiffs’ defense costs, including attorney’s fees, in the Porter-Coco litigation as well as this litigation. The court granted summary judgment in favor of the plaintiffs on their claim for costs and fees incurred in the Porter-Coco litigation, and awarded them $41,775.89. The court denied the plaintiffs fees or costs incurred in this litigation, and the plaintiffs have not appealed that ruling.
“In reviewing the trial court’s summary judgment rulings, we consider the evidence in the light most favorable to each party in its capacity as the nonmoving party and, if no genuine issue of material fact exists, we determine whether the moving party is entitled to judgment as a matter of law.”
N.H. Assoc. of Counties v. Comm’r., N.H. Dep’t of Health & Human Servs.,
The defendant concedes that she and her husband conveyed the property to the plaintiffs with the standard warranty covenants, including those pertaining to title and defense. She further concedes that she was timely and properly noticed by the plaintiffs regarding the Porters’ adverse claim, that she was asked to assume the defense against that claim, and that she refused to do so. She asserts that she was not obligated to defend the plaintiffs’ title pursuant to RSA 477:27 (Supp. 2008) because the Porters’ claim was not “lawful” in that it was settled prior to any judicial adjudication on the merits and that it was unfounded from the outset. She also argues that she is not liable for the plaintiffs’ attorney’s fees or costs under RSA 477:27 because the plaintiffs failed to claim damages other than the costs of defense. Finally, she asserts that even if she is liable for damages, her liability is limited to a fraction of the 1986 purchase price of $11,000.
The defendant’s liability for the plaintiffs’ attorney’s fees and costs incurred in the Porter-Coco litigation turns on our interpretation of RSA 477:27. “The interpretation of a statute is a question of law, which we review
de novo.” In the Matter of Liquidation of Home Ins. Co.,
RSA 477:27 provides:
A deed in substance following the form appended to this section shall, when duly executed and delivered, have the force and effect of a deed in fee simple to the grantee, heirs, successors and assigns, to their own use, with covenant on the part of the grantor, for himself or herself, heirs, executors and administrators, that, at the time of the delivery of such deed, the grantor was lawfully seized in fee simple of the granted premises, that the said premises were free from all incumbrances, except as stated, that the grantor had good right to sell and convey the same to the grantee, heirs, successors and assigns, and that the grantor will, and the heirs, executors, and administrators shall, warrant and defend the same to the grantee and heirs, successors and assigns, against the lawful claims and demands of all persons.
(Emphasis added.) The parties agree that the deed from the defendant and Therriault to the plaintiffs is a warranty deed subject to the provisions of RSA 477:27. The statute thus provides the plaintiffs a right of defense against all “lawful” claims and demands.
We will first consider the defendant’s argument that she was not obligated to defend against the Porters’ claim because the claim was settled prior to a judicial determination on the merits. We initially note that a reasonable settlement does not foreclose a court’s evaluation of the lawfulness of the underlying claim.
See, e.g., Garcia v. Herrera,
The plaintiffs’ request for compensation for their attorney’s fees and costs stemming from the defendant’s alleged breach of the duty to defend is, in essence, a claim for indemnity. “A right to indemnity arises where one is legally required to pay an obligation for which another is primarily liable.”
Morrissette v. Sears Roebuck & Co.,
If the indemnitor approves the settlement or defends unsuccessfully against the original claim, he cannot later question the indemnitee’s liability to the original claimant. If the indemnitor declines to take either course, then the indemnitee will only be required to show potential liability to the original plaintiff in order to support his claim over against the indemnitor.
Id.
(citation omitted; emphasis added);
see also Chicago, R.I. & P.R. Co. v. Dobry Flour Mills,
Here, the parties agree that the defendant received timely notice of the Porters’ claim and an opportunity to defend against it. The plaintiffs’ burden of showing their potential liability as to the Porters’ claim is coextensive with the burden of showing that their settlement was reasonable and entered into in good faith.
In examining the settlement in this case, we conclude that the trial court properly found that it was reasonable and entered into in good faith. We have previously ruled that the Porters had a right to pursue their quiet title action and that they were not foreclosed from doing so by Jaskunas’ 1982 quiet title decree.
Porter,
These circumstances also result in our rejection of the defendant’s argument that the Porters’ claim was unfounded and therefore not “lawful” within the meaning of RSA 477:27. The statute does not define “lawful claim” or “demand.” Generally, however, a “lawful” claim is a claim that is “conformable to law: allowed or permitted by law: enforceable in a court of law: LEGITIMATE.” WEBSTER’S Third New INTERNATIONAL DICTIONARY 1279 (unabridged ed. 2002). Thus, if a claim has a basis in law, it may be considered a “lawful claim.” A “demand” is an even broader term, including “the asking or seeking for what is due or claimed as due.” Id. at 598.
Notwithstanding the broad wording of RSA 477:27, the defendant argues that the Porters’ claim was not a “lawful claim or demand” sufficient to invoke the defendant’s covenant to defend. She cites
Eaton
as support for her assertion that “[e]xpenses incurred in defending against an unfounded claim cannot be recovered from those bound by the warranty.”
Eaton,
The defendant next argues that her liability should be limited to loss of title damages, which she asserts are no more than a fraction of the 1986 purchase price of $11,000. The defendant does not challenge the reasonableness of the plaintiffs’ fees and costs that were awarded, but asserts that *522 the statute does not provide for “attorney’s fees,” and that we should not imply such a right in the absence of specific statutory language.
We recognize that RSA 477:27 does not include the words “attorney’s fees” in mandating “that the grantor -will... warrant and defend” the deed covenants; indeed, the statute is silent as to the appropriate remedy when a grantor breaches the statutory covenant. We therefore look to the common law to determine the proper remedy for breach of covenants in a warranty deed.
See Wenners v. Great State Beverages,
The common law establishes a guarantor’s obligation to assume a defense or to pay the reasonable expenses relating to a claim made in connection with the covenant of seisin or title. “A party ... is entitled to recover of the covenantor all reasonable costs attending a litigation of the question of title.”
Drew v. Towle,
The two cases the defendant cites in support of her contrary argument do not compel a different result. She relies first upon
Willson v. Willson,
*523 In alleging error by the trial court in awarding attorney’s fees, the defendant also relies upon the trial court’s use of the heading, “DAMAGES” in its order. However, in its narrative under the heading, the trial court clarified that the amount awarded constitutes the plaintiffs’ costs of defense, including attorney’s fees, and, as discussed above, correctly required the defendant to indemnify the plaintiffs for these costs in connection with the Porters’ claim. Therefore, we uphold the trial court’s award of indemnification amounts, which it labeled “damages,” in the amount of the plaintiffs’ costs of suit and attorney’s fees.
The defendant also asks us to consider whether RSA 477:27 authorizes the award of costs independent of a potential claim for loss of title damages. RSA 477:27 mandates four separate covenants on the part of the grantor: (1) “that, at the time of the delivery of such deed, the grantor was lawfully seized in fee simple of the granted premises”; (2) “that the said premises were free from all incumbrances, except as stated”; (3) “that the grantor had good right to sell and convey the same to the grantee, heirs, successors and assigns”; and (4) “ that the grantor will. . . warrant and defend the same to the grantee and heirs, successors and assigns, against the lawful claims and demands of all persons.” The fourth covenant requires the grantor to warrant and defend “the same,” that is, the clear title and right to convey set forth in the first three covenants. The statute is silent, however, as to the extent to which a plaintiff must allege damage flowing from breach of the predicate covenants to support a claim for breach of the covenant to defend. We therefore look to the common law in this area.
See Wenners,
In the indemnification context, where the indemnitor declines to defend against the original claim, then “the indemnitee will only be required to show
potential liability to the original plaintiff
in order to support his claim over against the indemnitor.”
Morrissette,
In summary, by conveying the property by warranty deed, the defendant assumed the responsibility to either defend the title to the property or indemnify the plaintiffs for their reasonable expenses in doing *524 so. Her failure to take on the defense against a lawful title claim, despite repeated requests, results in her responsibility to pay the plaintiffs their reasonable litigation expenses, including attorney’s fees.
Affirmed.