QAs

BUSINESS LAW

FINAL EXAMINATION Kathryn S. Williams

	1.	Casey Cone was the manager of an ice cream stand known as Cones, ETC in Portsmouth, New Hampshire. Casey received a weekly paycheck but operated the ice cream stand without any supervision from Cones, ETC. In addition to her paycheck, she received 5% of the gross sales of the ice cream stand. There was a company policy that no one could be hired for more than two months at a time, but Casey hired Sally to help and promised her that she could have a job the following summer as well. Ivan Icy bought some ice cream from the ice cream stand and claimed that he became sick from the ice cream and his dinner guests also became ill. Cones, ETC fired Casey because she hired Sally, but the next season, Sally showed up for work not knowing about Casey being fired, found the ice cream stand locked and broke in. When inside, Sally saw a man and thinking he was a burglar, grabbed him thereby breaking two of the man's ribs. The man turned out to be the new manager. Casey opened a competing ice cream stand in Portsmouth called Cones and All. Discuss all legal issues.
	2.	Describe the requirements of negotiability under Article III.
	3.	What advantages does a secured creditor have over an unsecured creditor? What rights does a secured creditor have?
	4.	Describe the differences among LLCs, general partnerships and corporations.
	5.	Describe four (4) ways to acquire ownership of personal property.
	6.	Describe at least five (5) laws governing employment.
	7.	Describe some debts that cannot be discharged in bankruptcy and describe some assets that can be retained in bankruptcy. Give your thoughts as to why these are good rules.

8. Describe the implied warranty of merchantability and discuss reasons why it is a good law and some reasons why it is not a good law.

9. Describe four kinds of intellectual property.

10. From the discussion board, choose one post from another student. Discuss something of interest about the case that student wrote about. Also discuss how you think the parties could have avoided a lawsuit.

10.

1. Mark Knapp

Fairpoint Communications v. City of Concord Fairpoint Communications v. City of Concord

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Northern New England Telephone Operations, LLC d/b/a Fairpoint Communications—NNE v. City of Concord

No. 2013-221

Decided:  August 29th, 2014

 

This is a case between Fairpoint vs. The City of Concord.  The underlying issue of the case is that Fairpoint was being charged taxes for using the City's "Public rights-of-way" to run poles, wires, cables, etc.  These lines are essential to the business of Fairpoint, but they are placed on City/public property and subject to a real estate tax the "right-of-way" tax.  The taxes in question for the case were collected from 2000-2010.  At some point Fairpoint found out that the City was not taxing Comcast and Fairpoint sued on the grounds that the City was in violation of State and Federal equal protection laws and essentially was giving an advantage to Comcast by not taxing them and creating unfair barriers to Fairpoint's ability to do business in Concord.

 

The Superior Court initially ruled in favor of Fairpoint and stated that the lack of taxes charged to Fairpoint gave Comcast an unfair advantage.  The Superior court determined that Concord did not impose a right-of-way tax to Comcast for the years 2000-2010 and this was unfair to Fairpoint

 

The Supreme Court remanded this ruling and required Fairpoint to pay the back taxes that were due for these years.

 

The Supreme Court found evidence to suggest that the payments were not charged to Comcast due to misunderstandings of the rules related to the right-of-way tax and only began doing so in 2010 due to a ruling by the New Hampshire Board of Tax and Land Appeals that clarified for the town and stated they were subject to the tax.  It was also found that they were not imposing a tax on PSNH during the same time frame because they "were not aware of their usage".  The decision was due to a misunderstanding and not an act of judgment and there would be no benefit to the City of Concord to not tax them and Concord would have "no rational reason for selectively imposing the tax".

 

They used Case "State v. Ball" which supported the notion that "selective enforcement" is not evidence of a violation of equal rights laws which are primarily in place to protect against discriminatory treatment.

 

A number of other cases are given as evidence that all point to the fact that Concords lack of collecting the tax was lax and foolish (and they should have done a better job to ensure they were collecting taxes that should have been owed them), but did not violate any laws against Fairpoint and that Fairpoint still needed to pay what they owe.

 

When I was looking to pick a case, I was looking for cases with Comcast or one of the other large service providers because I always assumed their must be a large number of lawsuits against them due to the way they conduct business and all the complaints/issues people have with the companies.  In my search I was very surprised to find that there were not many at all.  I find this case to be humorous because it just shows that Concord (and I'm sure many other municipalities) clearly miss very basic things like these taxes.  You would think that if there is a tax against a company for running lines along the side of the street, it would be an easy thing to just look at who has wires and tax them all, but somehow the City managed to fail to collect taxes from at least 2 of 3 entities using the poles for 10 years.  That's a lot of potential revenue the City could have had that it just failed on.  Imagine how many other things are being missed due to "lax" enforcement and errors in judgment by these appointed officials.

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2. Jolly Pandya

final submission of case “Clapp V. Goffstown School District” final submission of case “Clapp V. Goffstown School District”

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This is the case of 'unjust enrichment". The respondent, Goffstown School District, appeals a request of the Trial Court granting the solicitor, Diane Clapp, restitution for the unjust enrichment of the district coming about because of its failure to partially fund a pension on her behalf. After marking another job contract each year, Clapp was qualified to get compensation and incidental advantages. Clapp not expected or got pension or retirement profits when she started working for the district in 1971.

 

For teachers of New Hampshire, enlistment in the New Hampshire Retirement System (NHRS) is mandatory, however school district may pick whether to select help staff. Apart from retirement profits, enlistment allows employees to purchase retirement profits credit for their years of former administration. After the establishment of non-NHRS retirement saving plan, Clapp's job contracts were liable to aggregate bargaining agreements between the union and the district. The main apparent claim that applicants could make against NHRS would be for equitable restitution under a hypothesis of unjust enrichment. To prevail such a claim a plaintiff must demonstrate that the defendant got "a profit which would be unconscionable for him to retain."

 

The district denied application of committee that Clapp joined for demanding former administration credit and then union petitioned the NHRS for assistance. The NHRS denied the union's solicitation because the NHRS had no record of the 1950 vote, no participation date was ever set, and therefore the union employees had not gotten to be qualified for NHRS participation until July 1, 2001. The board of trustee of the NHRS maintained the choice, and the union petitioned this court for survey.

 

The applicable statute of limitations for this action is three years. On the other hand, when the harm and its casual omission were not found and couldn't reasonably have been found at the time of the act or omission, the action shall be started inside 3 years of the time the plaintiff finds, or in the activity of reasonable diligence ought to have found, the damage and its casual relationship to the act or omission complained of. 

 

Statute of Limitations

 

Clapp was not officially advised that the Goffstown School District was unwilling to help her purchase back credits until she went before the district on June 21, 2004. Thusly, the statute of limitations did not start to run until that date. Clapp's appeal was gotten in court on June 15, 2007, and her claim is hence not barred by the applicable statute of limitations.

 

Declaratory Judgment

The Court declines to address whether GSD had a duty to notify the NHRS about the 1950 vote to include GSD support staff. While it is clear the NHRS did not establish a date of eligibility based on GSD’s 1950 vote, the parties didn’t present required evidence stating why an eligibility date was not established. Finally, Clapp’s request for a declaratory judgment is DENIED.

Negligence

To sustain a claim of negligence, Clapp must show that GSD breached a legal duty. As there is no sufficient evidence to find a breach of any duty, Clapp’s request for relief based on her negligence claim is DENIED.

Unjust Enrichment

Clapp argues that GSD was unjustly enriched as it never paid out the funds it had agreed to pay for the support staff’s pension.

If the court finds that equitable relief id proper because a party has been unjustly enriched, the correct measure of restitution is the value of the benefit received by the unjustly enriched party.

GSD was unjustly enriched in this case as it passively accepted the benefit of retaining funds it voted in 1950 to spend on behalf of the support staff. GSD has kept the money it agreed to pay to the NHRS on behalf of the support staff. The court need not find fault with GSD to find unjust enrichment, even if GSD is not at fault for the failure to enroll and pay for employees like Clapp in the NHRS, GSD has at least passively accepted this benefit and been unjustly enriched by it.

The court finds that the proper measure for restitution in this case is the amount GSD would have had to pay for Clapp’s pension in light of the 1950 vote. The court differs to the NHRS’s determination of the proper allocation of the burden for buy back credits between employer and employees. Finally, Clapp’s request that GSD pay the employer portion of her buy back credits is GRANTED.

Attorney’s fees

In her petition, Clapp seeks attorney’s fees because GSD forced her to seek judicial assistance to secure a clearly defined and established right, which should have been freely enjoyed without such intervention.

   Because the Court found that Clapp’s right to payment by GSD of the employer portion of her buy back credits was not clearly defined, an award of attorney’s fees in this case would be inappropriate, and Clapp’s request for attorney’s fees and costs was therefore DENIED. For all of these reasons petitioner’s Petition for equitable and legal relief was GRANTED IN PART and DENIED IN PART.

  One general limitation is that unjust enrichment shall not supplant the terms of an agreement. It is well established principle that the court ordinarily can’t allow recovery under a theory of unjust enrichment where there is a valid, express contract covering the subject matter at hand. The general rule is that unjust enrichment cannot coexist with a valid contract applies. The parties did not contest the validity of Clapp’s employment contracts, and it can be assumed that each contract was valid and fully enforceable.

Conclusion

 To conclude, as the parties defined the employment relationship by contract, and because those contracts were valid and enforceable, covering the same subject matter as Clapp’s unjust enrichment claim, we assume that the trial court erred in allowing Clapp to recover damages under a theory of unjust enrichment.

 

 

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3. Alekhya Karra

State Of New Hampshire vs Nicholas Trebian State Of New Hampshire vs Nicholas Trebian

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Case: State of New Hampshire vs Nicholas Trebian- 2013

Parties: The State of New Hampshire (Plaintiff) and Nicholas Trebian (Defendant)

Issue: Defendant, Nicholas Trebian, was convicted of possession of marijuana with intent to sell and possession of a controlled drug commonly known as ‘Ecstasy’ following a jury trial in Superior Court. On appeal, he argues that the trial court erred in denying his motion to dismiss the ecstasy possession charge.

Facts: On the evening of May 5, 2010, Jefrrey Gardner heard the squeal of rubber on pavement followed by a loud crash. Gardner, who is a part-time firefighter and emergency medical technician (EMT) drove to the accident area and when he arrived saw the headlights on the car involved ‘Flash’, as though someone nearby had locked the car remotely but when he approached the car he saw no one. He heard sounds of movements near the bushes, while he was on phone, and he demanded the person to come out of the bushes. The man who came out told Gardner that he’s all set and that he should get off the phone and not call the police. But when he saw the blue lights of Police approaching he ran off through an adjacent cemetery.

When Lieutenant Paul Paquette of the Allenstown Police Department arrived, he determined that the vehicle was registered to Amanda Guay, whom he later learned was the defendant’s girlfriend. Unable to contact Guay, the Police called tow truck and began an inventory search in the car. As he leaned into the vehicle, he detected a very strong odor of marijuana. When he looked into the back seat, he discovered a partially opened duffel bag containing what appeared to be a large bag of marijuana. At that point he stopped the search and had the vehicle towed to the police station and the following day obtained a search warrant. Detective George Baker discovered, inside the pocket on the driver’s door, a registration in the name of Amanda Guay. From the duffel bag in the back seat, Baker seized two plastic bags of vegetative matter that appeared to him to be Marijuana, as well as a larger, gallon-sized bag containing a ‘brick’ of what appeared to be compressed marijuana. In addition, Baker retrieved some papers, a pipe, a grinder used to break up marijuana, a scale, some items of men’s clothing, and receipts for purchases made at Wal-Mart and Cumberland Farms. At trial, the defendant and the state stipulated that the receipts belonged to the defendant and that no other person was with him when he made the purchases.

The day after accident, Gardner went to the police station and immediately selected the defendant’s photo, concluding that he was a ‘hundred percent’ certain that the defendant was the man whom he encountered at the accident scene.

The state laboratory analysis of the vegetative matter confirmed that it was marijuana and the chemist conducting the analysis discovered two ecstasy pills that had not been found during the search of the vehicle.

Decision: The defendant was subsequently charged with possession of marijuana with intent to distribute and possession of ecstasy.

Reason: After the State presented its case, the defendant moved to dismiss the possession of ecstasy charge, arguing that the police officer who sent the marijuana to the laboratory did not know of the presence of the pills and that the chemist was surprised to discover them inside one of the bags of marijuana. The trial court denied the motion and the jury found defendant guilty on both counts. So, as they have previously stated, “evidence of personal possessions of the defendant standing in close proximity to the controlled substance may provide a sufficiently close nexus between the defendant and the substance to allow the jury to infer possession. In this case, the ecstasy pills were not only in the close proximity to the marijuana but they were actually contained in one of the bags of marijuana. Considering all these evidences, the case went in favor of the state, charging the defendant.

Opinion : This case describes pretty much everything a reader has to know, the facts in detail, the possessions found in the car, proof by the Chemists and Police department, and defendant’s argument disproving Police search on ecstasy pills and finally the decision. I personally feel the decision is fair as for a person who was carrying such a drug like marijuana, wouldn’t be a great affair to have had evidences of ecstasy pills as well. His argument was pretty foolish as there were no proof of someone else’s presence regarding his possessions.

 Supreme Court Case.pdf 

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4. Phillip D'Acunto

ROBERT AUDETTE & a. v SUZYNNE D. CUMMINGS & a. ROBERT AUDETTE & a. v SUZYNNE D. CUMMINGS & a.

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Parties: Robert Audette, Plaintiff,       Suzynne Cummings, Defendant

Argued: September 12, 2013  Opinion Issued: December 24, 2013

Facts - Robert Audette and his company H&S Construction LLC entered into an agreement with Suzynne Cummings and her company, S.D. Cummings & Co., PC for which S.D Cumming would put a mechanics lien in the amount of $44,403 on an unfinished home H&S Construction performed framing work on in early March 2008. The town of Kingston put a  Cease and Desist on the property before the job could be completed.. The agreement was entered into while Audette was receiving Tax advise from SD Cummings, who he has had a long term professional relationship with. The terms of the agreement were set forth in a representation letter from SD Cummings dated March 10, 2008.

In addition to the information outlined in the representation letter, Cummings advised Mr. Audette not to talk to the project General Contractor or the home buyers and refer all calls to Cummings.  Mr. Audette received a call from each the contractor and the home buyers informing him he would be paid if he completed the job.  Both times he took Cummings advice and didn’t respond but instead relayed the calls to Cummings.

Between October of that year and the spring of 2009, Audette’s wife and Cummings shared emails discussing the case and based on these emails, the Audettes were under the assumption that Cummings had gotten the mechanics lien and had filed suit against the contractor. By the summer of 2009 Cummings was no longer answering the Audette’s attempts to communicate.  At this point the Audettes did research and discovered Cummings failed to record a mechanic’s lien and the 120 day statute of limitations to do so had expired. Mr. Audette sued SD Cummings for breach of contract.

Issue: Did Suzynne D. Cummings breach her contract by failing to obtain a mechanics lien on the property?

Initial Decision:The trial court ruled in Audette’s favor and awarded damages in the amount of $44,403.  Cummings Appealed.

Reason for Appeal: The defendant appealed based on a three part stance outlined below

1. The Plaintiff failed to mitigate its damages by not completing the job after receiving the 2 phone calls.  2. The damages were not a result of the breach of contract. 3. The plaintiff should have been required to submit expert testimony.

Supreme Court’s Decision: The New Hampshire Supreme Court upheld the trial court’s decision and sided for the Audettes for $44,403

Supreme Court’s Reasoning:  In Supreme court made the following responses to the defendants appeals.

Appeal #1: The Supreme Court ruled that the Plaintiff must only attempt to mitigate damages once it is clear the other party is refusing its part of the agreement. In this case by the time the Plaintiff learned of the other party’s breach, the statute of limitations had expired.

Appeal #2: The Supreme Court ruled that the evidence of the case shows the defendant caused the damages by failing to perform the duties outlined in the representation letter.

Appeal #3: The court ruled that an expert witness is only required if the issues presented are more advanced than what could be understandable to the average person.  The court stance was the items breached in this case were understandable to the average person and thus an expert witness was not necessary.

Point of Interest to Me:  I chose this case because it was relevant to my professional life. I work for a firm similar to SD Cummings and I thought any case regarding my industry would be both interesting and possibly valuable for future reference.  The biggest take away for me the review was how near sighted the actions of SD Cummings were. By allowing a case like this to go to trial SD Cummings is ruining its reputation and it will undoubtedly cost them many current and potential clients.  It does not surprise me that this firm has no online presence as they seem to be unaware of public perception and its effect on business.    

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