Wiggin & Nourie, P.A., of Manchester (Jeffrey B. Osburn & another on the brief, and with business relationships, and intentional and negligent misrepresentation. .. This outcome is logical because by closing its office, the plaintiff avoids. Ross was president of Wiggin & Nourie at its index-art.info were 20 lawyers working at Wiggin & Nourie when it closed, some of whom have. also of Wiggin & Nourie, filed her appearance as co-counsel on behalf of Mike in . and Wiggin & Nourie not only knew about the relationship but encouraged Several lenders have either withdrawn from closing loans.
Granite Bank, N. While AGNE assisted Clarkeies in the preparation of certain financial information in connection with the Groveton and Colebrook transactions, Clarkeies obtained the financing of this purchase on its own from the Berlin City Bank. Further, the testimony of Ennis was that the assistance rendered in this regard was more form than substance.
While the parties differ over the nature of the financial services, i. Further, the testimony of Sherrie Thomas, who worked as a bookkeeper for AGNE, was that when she made comments on a gross profits reports for Novembershe was told by Mr. Clarke that he didn't want comments or advice. Further evidence of the lack of confidence necessary to create a fiduciary relationship includes the fact that Mr. Clarke visited the Berlin and Woodsville stores prior to the closing, spoke to their managers, asked for and received the weekly sales reports for the two stores in late Octoberand was represented by counsel prior to and at the closing.
For purposes of judicial economy, the Court further finds that had a fiduciary relationship existed, there is insufficient evidence of a breach of duty as a result of the fiduciary relationship. The Court agrees with AGNE that there is insufficient evidence of any standard of care in the industry presented by Clarkeies. First, the Court does not agree that saying it is so makes it so. Items designated as false information must be the income cash flow pro formas prepared by AGNE, especially for the Berlin store, as shown to Mr.
Longtime NH Law Firm Wiggin & Nourie to Close Its Doors After Losing 20 Lawyers
The Court finds it hard to categorize pro formas as false information under any circumstance. They are just projections based on assumptions of what might happen in the future. The circumstances surrounding the Berlin store were known to all of the parties, including the alleged lack of competition inthe imminent opening of a Shaw's, and the economic realities of the City of Berlin, New Hampshire.
Prior to starting Clarkeies, Mr. Clarke had been responsible for a Prescott Farms store in Berlin and had to be familiar with the territory in general. Clarkeies asserts that AGNE had a duty of loyalty, which it breached by acting in its own self-interest by becoming the supplier of the three stores, knowing that the Franconia store purchased by Hall acquired the Kelley trade name, allocating too much of the sales price to non-compete and goodwill, and alleging that Hall would have paid more for the Franconia store.
It is clear that Clarkeies had to know that AGNE would be its supplier and inventory financier and, as such, had to consent to such a relationship. While AGNE did prepare the purchase agreement for Hall which, among other things, included the transfer to Hall of the Kelley trade name, this by itself does not evidence competition and, in fact, there is insufficient evidence in the record that the Franconia store competed with any of the Clarkeies stores.
Further, Clarkeies received just the kind of protection required in a non-compete clause from Kelley. While Clarkeies alleges that a better allocation of the sales price between machinery and equipment, goodwill and noncompete could have been obtained, there is no evidence in the record that Kelley would have agreed to a different allocation.
Likewise, although Clarkeies alleges that Hall would have paid more for the Franconia store, there is no evidence in the record that the sales price to Clarkeies for either store was unfair. The statute then lists fourteen types of acts or practices which are included under the Act. However, the primary business of AGNE is to supply members with products to be used in the retail grocery business and not the facilitating of the purchase of stores.
Likewise, Clarkeies is not a "consumer" as the term is usually used. The Consumer Protection Act is a comprehensive statute whose language indicates that it should be given broad sweep. Despite its broad language, however, it is not unlimited in scope.
While the Act itself states that it is not limited only to those specific transactions, see RSA A: The types of actions as contemplated by the statute relate to goods and services, the sale thereof, the quality thereof, the advertising thereof or the false disparagement of another party's goods and services.
Longtime NH Law Firm Wiggin & Nourie to Close Its Doors After Losing 20 Lawyers
In contrast, the transaction at issue in this case was a business transaction between two entities engaged in the grocery business, Clarkeies as a retailer, and AGNE as a supplier. It is not a transaction specifically enumerated under A: In the case of State v. Moran, decided in Decemberthe New Hampshire Supreme Court indicated it clarified its ruling in the Roberts case: We have recognized that the general provision of the [Consumer Protection Act] is broadly worded, and not all conduct in the course of trade or commerce falls within its scope.
Because of the difficulty often associated with determining which commercial actions, not specifically delineated, are covered by the act, we employed the rascality test in Barrows. See Milford Lumber Co.
RCB Realty, N. In doing so, we clarified our ruling in Roberts v. See Barrows, N. Under the rascality test, "[t]he objectionable conduct must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce. The Court believes that this kind of business transaction, documented by closing binders including approximately thirty different documents, does not require the type of protection contemplated by the Act.
Even if one might consider it to be within "the rough edges of commercial lending," that is not sufficient to trigger a violation of A. Count III is denied. Count IV alleges a breach of the covenant of good faith and fair dealing inherent in a fiduciary or confidential relationship.
The Court has found that no such relationship existed. Count TV also makes references to numerous contractual relationships with Clarkeies. Prior to the purchase of the Berlin and Woodsville stores, Clarkeies had a relationship with AGNE as its supplier and inventory financier for the Groveton and Colebrook stores. The evidence does not support a finding that AGNE breached any covenant of good faith and fair dealing with respect to these contractual arrangements.
As a result of the purchase of the Berlin and Woodsville stores, AGNE also became the supplier and inventory financier of Clarkeies, and it also became its landlord through its subsidiary, Associated Lease Corp.
Clarkeies characterizes this leasing company as an entity lacking assets. This Court disagrees with that characterization because the leasehold interests themselves are assets and, in some instances, can be valuable assets. The Court finds that assuming the role of landlord is not a breach of any covenant of good faith or fair dealing. While not referred to in this court but mentioned in Count IX, some evidence was produced at the trial of AGNE's litigation in the superior court to enjoin the purported sales of the Colebrook and Groveton stores and to obtain possession of all of the stores alleging the assets were cross-collateralized.
The cross-collateralization issue was subsequently tried before Judge Deasy of this Court, who found in his January 22,opinion that the assets of the Berlin and Woodsville stores secured all obligations to AGNE, but that the Colebrook and Groveton assets secured only the loans associated with these stores and the allonge referred to in the opinion.
See Clarkeies Market, L. Associated Grocers of New England, Inc. Clarkeies, at trial, alleges that to bring the action in the New Hampshire superior court based on allegations of cross-collateralization was wrongful. Once again, this Court disagrees. There is no evidence that AGNE did not believe that cross-collateralization existed. Judge Deasy devoted over four pages of his opinion to just this issue.
Consequently, this Court cannot find that commencing litigation in the superior court is a breach of any covenant of good faith and fair dealing. While the Court is on the subject of litigation in the New Hampshire superior court, Clarkeies also alleges that the enjoining of the sales of the Groveton and Colebrook stores was wrongful and in breach of the right of first refusal held by AGNE. While this issue was not fully litigated in this particular adversary proceeding, there is ample reason to question whether the purported purchase offer was a bona fide offer to which AGNE had to respond.
Count IV is denied. Count V alleges damages arising out of the negligent provision of brokerage services. This Court has found that an agency brokerage relationship did not exist and, thus, Count V is denied.
Count VI is for negligent misrepresentation. While the pleadings are not specific as to the alleged misrepresentation, testimony and evidence produced at trial on behalf of Clarkeies leads the Court to believe that they were two-fold.
First, Clarkeies alleges that AGNE represented that the two stores were "good" stores or "viable" stores. Clarkeies further asserts that since AGNE knew that Clarkeies did not want to jeopardize the Colebrook and Groveton stores, these representations equated to a guaranty by AGNE that the stores would be profitable with positive cash flow.
The second representation that Clarkeies alleges as being negligent is based on income and cash flow pro formas shown to Mr. Clarke at the meeting in Bretton Woods.
This latter pro forma cash flow was an attempt to analyze the effect that the new Shaw's might have on the Berlin store. An essential element of that tort is that AGNE supplied false information. The New Hampshire Supreme Court described a tort as follows, "American's claim of error is best approached by considering the basic elements of the tort: Not only must there be a false representation, but there must be justifiable reliance.
It is Clarkeies' reasoning that because AGNE knew that Clarkeies wanted the Berlin and Woodsville stores to stand on their own, AGNE's representation that these stores were "good" stores or "viable" stores was a guaranty of their future profitability and thus a misrepresentation when subsequently the stores proved not to be the case. This Court does not agree.
First, there is no evidence that the stores were not viable or good at the time the statements were made. There are risks associated with any business transaction. It is patently unreasonable to think that anyone would guarantee the success of this type of a business venture especially when the venture was not its own. There are so many variables which might affect profitability, some external and not in Clarkeies' control, such as the Berlin economy and competition, and some controlled by Clarkeies, such as changes in management, employee problems, improvements to a particular store and monetary withdrawals by the members of Clarkeies.
Evidence of all of these types of issues was presented at trial by AGNE. Finally, it was not in AGNE's interest to pursue a venture that was not viable since it financed the inventory, became the prime lessor, and guaranteed Clarkeies' obligations to Kelley. These documents were prepared by AGNE from information supplied by Kelley in the summer ofapparently for internal purposes. Clarke's testimony that they were shown to him at the August 17,meeting in Bretton Woods.
Although another statement was prepared for the Berlin store Pl. Clarke did not retain a copy of these documents. As to the pro formas shown to Mr. Clarke, Clarkeies, through its expert, Mr. Maloney, asserts that they were not accurate and overstated the cash flow available to Clarkeies.
Maloney did not create his own cash flow but basically used the Felder report to which adjustments were made, including a tax analysis, both on the Clarkeies level and the Clarkes' personal level. Needless to say, the experts disagreed in this analysis, including on which years they should base the pro formas for the Berlin store.
It is interesting to note that, while the differences in projected cash flows were substantial, they all resulted in positive cash flow. Considerable time was taken at trial in the examination and cross-examination of these witnesses and their reports.
The Court believes they missed the point. The issue before the Court is not which of the experts' testimony constitutes the most accurate pro forma, but whether the AGNE pro formas, when they were prepared or shown to Mr.
Clarke, constituted a basis for a finding of negligent misrepresentation. This Court believes they did not. First, pro formas are, by definition, projections of what might happen in the future based on assumptions usually related to past performance.
The pro formas were prepared prior to an agreement on the final figures as to the sales price, inventory financing and interest rates, which is clear on the face of the pro formas. The pro formas were shown to Mr. Clarke more than three months prior to the closing.
Subsequent to the Bretton Woods meeting, Mr. Clarke requested and received financial information from Kelley through AGNE, including the weekly sales reports for both stores for the prior two years. Clarke was aware of the imminent opening of a Shaw's and had previously managed stores in the Berlin area. AGNE did not prepare Clarkeies' tax returns and, thus, the information necessary to do a tax analysis was not available to AGNE at the time the pro formas were prepared.
Clarke had provided pro formas in connection with the purchase of the Groveton and Colebrook stores, he apparently made no effort to prepare any pro formas in connection with the purchase of the Berlin and Woodsville stores. Finally, the evidence does not support a finding that AGNE knew or should have known that the pro formas were inaccurate when prepared and when shown to Mr.
The Court finds that to rely on these pro formas, produced prior to the finalization of the transaction, was not justifiable reliance. For all of the above reasons, the Court also finds that the failure to show Mr. Any assumption as to the effect Shaw's would have on the Berlin store would be no more than a guess and, thus, could not be justifiably relied upon. Count VI is denied. The seventh count is entitled "Negligent Provision of Due Diligence.
The cases arose when the Chiefs of Police in Hudson and New Ipswich, New Hampshire arrested and charged our clients because they did not have valid immigration status. This criminal provision of the law is, in my experience, seldom used except at the border. Rather, the cases are most often handled as civil matters.
They go to a specialized administrative court called the Immigration Court, which is part of the Department of Justice.
Wiggin & Nourie, P.A.:
The petty offender gets nearly the same treatment as the very dangerous criminal — and that treatment is deportation. This is a problem. If they all broke the law they should be treated equally and get the same punishment right? When we deport someone who has been here 10, 15, or even 20 plus years — that person often has a home, a business or a strong work history, and a family.
So what is the result? It can often be a fire sale of the family home, a business closure or an employer who loses productivity while training a new worker, and U. For a class B misdemeanor? This is not smart public policy; it is self-defeating and unnecessary.
We have the right as a country to limit immigration levels and to secure our borders. However, that we have the right to deport persons from our soil if we wish does not mean that we should always do so. The United States needs some alternative remedies for dealing with immigration law violations.