Friday, September 19, 2014

ENFORCEABILITY OF PRENUPTIAL AGREEMENT WHEN THE ORIGINAL DOCUMENT CANNOT BE FOUND

In some marriages the parties execute prenuptial agreements which seek to protect certain assets from division by a family court should the marriage end in divorce. These agreements must be in writing and signed by the parties in order to be enforceable. In some cases, however, the parties have lost the original signed agreement and may only have unsigned or draft copies. In the Matter of Serodio and Perkins, the New Hampshire Supreme Court held that the failure to locate the original signed agreement does not preclude enforcement. In Serodio, the husband claimed that he and his wife signed a prenuptial agreement and the wife kept the only signed copy. Unfortunately he could not locate the signed document. The wife argued that she never signed the agreement. The trial court dismissed the request to enforce the prenuptial agreement because the husband could not produce the original signed document. On appeal, the New Hampshire Supreme Court reversed stating that while a prenuptial agreement must be in writing and signed in order to be enforced, the party seeking to enforce does not have to necessarily produce the original signed document. Instead, the husband could attempt to prove that an original signed prenuptial agreement did exist at one time, through introduction of other evidence such as testimony from the attorneys who drafted the agreement and/or testimony from witnesses who observed the parties signing the agreement. Serodio stands for the proposition that merely because the original prenuptial agreement cannot be located does not mean that the court will ignore the existence of this agreement if satisfactory secondary evidence can be located such as witness or attorney testimony. A court may conclude that an original, signed agreement existed at one time and from there determine whether the terms of that agreement are enforceable.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at apiela@nashualaw.com.

Thursday, September 18, 2014

RELYING ON A CUSTOMER’S REPRESENTATION OF FUTURE ORDERS WITHOUT A CONTRACT IS VERY RISKY

In many industries, companies prepare for orders from customers without having a firm purchase order or other contract. This preparation could involve getting inventory in place for the manufacturing expected order or for a reseller ordering the product so that it is ready to ship when the customer asks for it. If the customer does not order the amount of product that it previously stated it was planning to, the question comes down to what remedies, if any, would you have against that customer? Since there is no contract, generally the claim would be a claim of fraudulent misrepresentation which was the claim in the Genesis Strategies, Inc. v. Pitney Bowes, Inc. and ICSN, Inc. in the Massachusetts federal court decision of August 27, 2014. The Massachusetts federal judge had previously ruled that many of Genesis’ claims against the defendants would not be allowed to go a jury and granted summary judgment, yet, ruled that a fraudulent misrepresentation claim could continue. However in the August 27, 2014 decision, the Court agreed with Pitney Bowes that a fraudulent misrepresentation claim failed as well for failure to prove damages. The Court in that Order noted that to make a claim for fraudulent misrepresentation under Massachusetts law, which is similar to New Hampshire law, Genesis would have had to prove that: (1) Pitney Bowes made a false misrepresentation of a material fact with knowledge of its falsity for purposes of inducing Genesis to act; (2) Genesis relied upon the representation; (3) Genesis’ reliance was reasonable under the circumstances; and Genesis was harmed as a result of its reasonable reliance.

In such cases, the difficulty for plaintiffs like Genesis would be that even if the case did go to trial it would need to prove at trial that the customer in this case made false misrepresentations as to what it would need in the future with knowledge of its falsity. In other words, if this case were to proceed forward to trial there would need to be evidence for the jury to conclude that Pitney Bowes misrepresented what it expected to order from Genesis and knew at that time that they would not order such volume of product. In some circumstances the facts may prove to be that, but often the reality is that a customer has optimism as to the success of their business and therefore the representation that it will need product from company is based upon a genuine belief.

Irrespective of the difficulty a company would have in proving that its customer in representing its projections in future orders from your company knew the projections were overstated, the Court ultimately ruled that in cases where the company’s only loss is the opportunity to make a profit that its recovery should be limited to a pecuniary loss only suffered as a result of the representation rather than the loss claimed from disappointed expectations. The evidence in this case showed that Genesis was able to resell the product it ordered. Therefore its only claimed loss was lost profits being able to sell at a mark up to Pitney Bowes since this other customer was willing to buy the product when it could have sold to both that other customer and Pitney Bowes. Since the Court agreed with Pitney Bowes that Genesis could not claim such damages as to the lost opportunity to make profit on the sale of the product to both Pitney Bowes and the replacement customer, the Court granted summary judgment on that remaining fraudulent misrepresentation count leaving Genesis only to its right to challenge that decision on appeal.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.

Wednesday, September 17, 2014

CONTROVERSIAL WILLS CAN NOW BE PREAPPROVED BY THE PROBATE COURT

Your controversial Will can now be preapproved by the Probate Court while you are still alive. Effective July 1, 2014, the New Hampshire Legislature made several revisions to the Will and Trust statutes; one of which permits a person who drafts a Will and notices all interested parties to go before a probate division of the circuit court and get it approved thereby later minimizing the likelihood of family fights over his estate after his death. This pre-death Will approval in many Wills would be an inappropriate waste of money, yet in a controversial Will it may be money well spent. For example, if you are in your Will leaving an uneven distribution to one of your children that the others may dispute or providing a large distribution to a non-relative friend and are concerned that relatives may suggest that you either lacked the mental capacity or were unduly influenced in entering into that Will (see previous post here), a hearing before a circuit court probate judge where he and others can ask questions of you to determine why you are doing what you are doing could save a lot of time and money.

However if someone is truly unduly influencing the Will maker, such a hearing could be used to increase that undue influencer’s chances of keeping the gifts since it is often less likely that a son or daughter would want to face their parent and state that she is mentally incompetent or unduly manipulated into entering into the Will. When faced with such a challenge, it may be more likely that a child will opt to not object allowing the undue influencer to get his way so that the children can still spend quality time with their parent during her remaining years.

Lastly, this statute does not affect what is called “lifetime transfers” such as changing the name on a bank account so that it is payable upon death to another. Those transfers happen automatically upon death without the need of a Will being probated and still could be subject to claims of lack of mental competence or undue influence.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.

Tuesday, September 16, 2014

Massachusetts Trial Court's Decision Helps Injury Victims Get Full Access to the Truth

In the case of Walsh v. Wong, the Massachusetts Superior Court addressed the issue whether a statement given by the defendant to her insurance company could be withheld from the injury victim.

In December 2010, the plaintiffs were struck by the defendant Wong who failed to stop at a stop sign resulting in the crash. The defendant gave a statement to both the police officer at the scene and, shortly thereafter, to her insurance company. The defendant refused to provide the statement given to her insurance company claiming the document was protected by the Work Product Doctrine. The Superior Court judge disagreed and ordered the statement to be produce as the Work Product Doctrine was inapplicable and that the statement could not be obtained by any other means. The court found the statement was important as the defendant for the first time raised the issue of the sun being a factor in the accident only after the lawsuit had been filed and had not made any reference to the sun in either her statement to the police and/or to her insurance company.

This decision is important to injury victims as it levels the playing field in automobile accident cases. Many times the defendant will obtain the injury victims' statement to her insurance company but will refuse to produce the defendant's statement given to them. Insurance companies often argue that the statements given by the defendants are protected and this decision narrows the instances in which the statement may be withheld and thereby allowing for full disclosure and the truth to be established.

If you have any questions regarding a car, automobile, motorcycle, pedestrian or truck accident, whether in Massachusetts or New Hampshire, please contact an attorney at Hamblett & Kerrigan to discuss. Let Hamblett & Kerrigan use their experience in representing injury victims to your advantage.

Kevin P. Rauseo is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Professional Development Committee and has previously served on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo at krauseo@nashualaw.com.

Monday, September 15, 2014

Court May Order Recipient of Support to Maintain Life Insurance

In Zaleski v. Zaleski, the wife was the recipient of support for the benefit of her and the children. The trial court ordered that the wife maintain life insurance to secure her obligations to cover the children's expenses if she died while the children were still dependent upon the parents for support. While the Supreme Judicial Court remanded the decision back to the court as it found the amount of security to be excessive, the decision is important to note that even though a party is a recipient of child support, he or she may still be ordered to provide life insurance coverage for the benefit of the children in case he or she passes away.

If you have any questions regarding alimony, in Massachusetts or New Hampshire, please do not hesitate to contact an attorney at Hamblett & Kerrigan to discuss. The attorneys at Hamblett & Kerrigan have experience in handling such situations. Let Hamblett & Kerrigan use their experience to your advantage.

Kevin P. Rauseo is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Professional Development Committee and has previously served on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo at krauseo@nashualaw.com.