Johnson v. The Capital Offset Company, Inc. et al

Filing 182

ORDER denying 177 Motion in Limine to Exclude Certain Evidence of Damages. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Alford Johnson, as Trustee
of the Martha Wood Trust
v.

Civil No. 11-cv-459-JD
Opinion No. 2014 DNH 244

Puritan Press, Inc. d/b/a
Puritan Capital, et al.
O R D E R
Alford Johnson, as the trustee of the Martha Wood Trust,
brought suit against The Capital Offset Company, Inc., which is
now Puritan Capital; its president, Jay Stewart; a consultant who
later worked for Puritan Capital, Stephen Stinehour; and Acme
Bookbinding Company, alleging claims arising from the printing
and binding of a photography book, Spiritual Passports.

Acme

moves, in limine, to exclude evidence of damages claimed by
Johnson that were incurred before the date of Acme’s alleged
negligent misrepresentations.

Johnson objects.

Discussion
Acme argues that any alleged negligent misrepresentations
could not have caused costs that were incurred before October 19,
2009, when the misrepresentations were allegedly made.

For that

reason, Acme asks that evidence of costs incurred before October
19, 2009, be excluded as to Johnson’s claim against Acme.

In

response, Johnson contends that costs for production of the book
that were incurred before October 19, 2009, are recoverable as

consequential damages against Acme for negligent
misrepresentation about the efficacy of the binding method
without glue traps.
“The general rule is [] that the measure of damages
recoverable for misrepresentation, whether intentional or
negligent, is actual pecuniary loss.”
Inc., 124 N.H. 814, 817 (2984).

Crowley v. Global Realty,

Consequential damages are

included within the damages recoverable.

Id.

Consequential

damages are those amounts the plaintiff lost because of the
defendant’s misrepresentation.

Pure Barnyard, Inc. v. Organic

Labs., Inc., 2012 WL 4472012, at *9 (D.N.H. Sept. 26, 2012).
Johnson contends that Acme misrepresented that binding
Spiritual Passports without glue traps would work.

Johnson

further contends that when Acme made that representation, Acme
knew that Johnson had incurred costs to develop and produce the
book before it arrived at Acme for binding.

In reliance on

Acme’s representation, Johnson asserts, he agreed to have the
books bound without glue traps, instead of stopping production
and requiring Puritan Capital to print the pages with glue traps.
Binding the books without glue traps, Johnson argues, caused or
contributed to cause the failure of the books’ bindings.

As a

result of the failed books, Johnson contends that the money he
spent to develop and produce the books was wasted and that the
loss was a consequence of Acme’s misrepresentation.
Johnson’s claim is that although the costs for development
and production of the books were incurred before Acme allegedly
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misrepresented the efficacy of the binding method, the damage
occurred after the misrepresentation when the books were bound
without glue traps and the bindings failed.

Johnson’s previous

expenditures for development and production, therefore, were
wasted.

In other words, the loss occurred after Acme’s alleged

misrepresentation.

Acme has not shown that the costs Johnson

incurred to develop and produce the book are not recoverable as
consequential damages.

Conclusion
For the foregoing reasons, the defendant’s motion in limine
to exclude damages for costs incurred before October 19, 2009,
(document no. 177) is denied.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
November 24, 2014
cc:

Lawrence F. Boyle, Esq.
Gary M. Burt, Esq.
Anthony M. Campo, Esq.
Thomas J. Pappas, Esq.
Arnold Rosenblatt, Esq.
Mark W. Shaughnessy, Esq.
William N. Smart, Esq.

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