Moulton v. Bane et al

Filing 150

///ORDER: Defendants' motion under Rule 52(c) to dismiss CPA claim is denied. Court finds and rules in favor of Moulton as outlined; Total damages awarded $227,868.18. Moulton entitled to an award of the costs of the suit, including attorneys' fees. Motion due by 4/11/16; response due within 14 days from date motion is filed. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Thomas M. Moulton
v.

Civil No. 14-cv-265-JD
Opinion No. 2016 DNH 058

David Bane and
Prime Choice Enterprises, LLC

O R D E R
Thomas M. Moulton brought suit against David Bane and his
company, Prime Choice Enterprises, LLC (“PCE”), after their
business relationship ended acrimoniously.

Bane and PCE brought

counterclaims against Moulton and third-party claims against
Eric Emery, King’s Highway Realty Trust, Ltd. Partnership, and
North Madison Hill LLC.

Following summary judgment, the

counterclaims and third-party claims were dismissed and
Moulton’s claims were resolved in part.
Moulton’s claims that remained for trial were fraudulent
misrepresentation, breach of the implied covenant of good faith
and fair dealing, and violation of the New Hampshire Consumer
Protection Act.

The amount of damages for breach of contract,

or alternatively, promissory estoppel also remained for trial.
The case was tried to the court on January 6 and 7, 2016.
parties have submitted post-trial briefs.

The

I.

Preliminary Matters
Before trial, Bane and PCE objected to Moulton’s request in

his trial brief for an award of attorneys’ fees premised on
Keenan v. Fearon, 130 N.H. 494 (1988).

The issue of attorneys’

fees is addressed at the end of the order.

During trial, Bane

and PCE raised issues of standing, accord and satisfaction,
estoppel, and waiver.

After the evidence was closed, counsel

for Bane and PCE moved to dismiss the Consumer Protection Act
claim, and both sides were heard on the motion.

In their post-

trial brief, Bane and PCE asked the court to exercise its
equitable powers on their behalf but did not address standing,
accord and satisfaction, estoppel, or waiver.

Those matters are

addressed as follows.
A.

Standing

One of the issues that was tried was the amount of expenses
owed to Moulton by Bane and PCE as damages for breach of
contract or, alternatively, promissory estoppel.

During trial,

counsel for Bane and PCE argued that Moulton lacked standing to
claim as damages the expenses incurred to protect the TMH assets
and to assist PCE because he did not pay the expenses
personally.

In their post-trial brief, Bane and PCE argue,

without raising standing, that they do not owe Moulton for the
expenses because he did not personally pay the expenses.
2

At trial, Moulton testified that the expenses were paid
from a trust, the Fairview Nominee Trust.

Moulton contends that

because the Fairview Nominee Trust is not a true trust, he
actually paid the expenses.

Bane and PCE do not dispute that

Moulton was liable for the expenses he incurred on behalf of
Bane and PCE but contest Moulton’s argument that payments from
the trust are actually payments from him.
Moulton argues that under Dwire v. Sullivan, 138 N.H. 428,
431 (1994), Moulton, as the sole beneficiary of the Fairview
Nominee Trust, controls the trust and allows the court to ignore
the trust.

Because the trustees of a nominee trust have no

power, the beneficiaries of a nominee trust, not the trust
itself, engage in business activities.

Id. at 430-31.

Therefore, Moulton asserts, payment from the trust was payment
by Moulton, himself.
In response, Bane and PCE rely on In re Village Green
Realty Tr., 113 B.R. 105 (Bankr. D. Mass. 1990), a case cited in
Dwire.

The bankruptcy court in Village Green stated that

because “the beneficiaries of a nominee trust have the exclusive
power to direct the activities of the trustee, it makes sense to
view the beneficiaries as the owners of the trust res” so that
the beneficiaries, not the trust, engage in business activities.
Id. at 114.

The bankruptcy court explained that the particular
3

functions and purposes of the trust would determine whether the
trust was eligible for bankruptcy protection.

The court put the

burden on the trustees and beneficiaries to show whether they
were, individually, entitled to bankruptcy protection or whether
the trust was protected.

Id. at 114-15.

Because Bane and PCE

do not challenge the status of Fairview Nominee Trust or
Moulton’s role as beneficiary, Village Green provides no support
for them.
Based on Dwire, Moulton, as the beneficiary of the Fairview
Nominee Trust, controls the Trust and its resources.

Therefore,

payment from the Trust is payment from Moulton.
To the extent Bane and PCE challenge Moulton’s standing,
the theory lacks merit.

Standing to bring a claim in federal

court requires a showing that the plaintiff “has suffered a
concrete and particularized injury that is fairly traceable to
the challenged conduct, and is likely to be redressed by a
favorable judicial decision.”
Ct. 2652, 2661 (2013).

Hollingsworth v. Perry, 133 S.

In this case, it has been determined

through summary judgment that Bane breached his agreement to
reimburse Moulton for expenses which Moulton incurred in
preserving the TMH assets, facilitating the Article 9 sale of
the assets, and supporting PCE.

Therefore, Moulton was injured

when Bane failed and refused to reimburse the expenses that
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Moulton had incurred.

The injury may be redressed by payment of

those expenses as damages.
In addition, aside from the effect of the nominee trust,
New Hampshire recognizes the collateral source rule.

See

Tamposi v. Denby, --- F. Supp. 3d ---, 2015 WL 5737132, at *36
(D. Mass. Sept. 30, 2015) (applying New Hampshire law).

“Under

that rule, if a plaintiff is compensated in whole or part for
his damages by some source independent of the tort-feasor, he is
still permitted to make full recovery against the tort-feasor.”
Doreen W. v. MWV Healthcare Assocs., Inc., 937 F. Supp. 2d 194,
196 (D.N.H. 2013) (internal quotation marks omitted).
Therefore, to the extent the liabilities Moulton incurred
on behalf of Bane and PCE were paid by the trust, that would not
affect Moulton’s claim.
B.

Affirmative Defenses

During trial, Bane and PCE raised affirmative defenses of
an accord and satisfaction, waiver, and estoppel that had not
been pleaded or previously raised in the case.
the defenses in his post-trial brief.

Moulton opposes

In their post-trial

brief, Bane and PCE do not address those defenses but instead
argue for the first time that they are excused from paying the
expenses, despite the summary judgment ruling, because Moulton
breached the negotiation requirement in the Assignment and
5

Assumption Agreement that governed the purchase of the TMH note
by PCE.
1.

Accord and Satisfaction, Waiver, Estoppel

After their relationship soured, Moulton offered Bane
proposals to resolve their differences.

He suggested that they

divide the TMH business and that he would take the TMH stores in
Scarborough and Stratham and Bane and PCE would have the
franchise operations.

Bane refused the offer on the ground that

the stores were more valuable than the franchising operations.
Moulton then reversed the offer, but Bane declined again.
Because Bane did not agree to either offer, no resolution
was achieved.

Moulton then leased the stores in Stratham and

Scarborough and bought the equipment at the Stratham store from
the lessor.

Moulton has opened butcher shops in both locations.

During trial, Bane and PCE argued that Moulton achieved the
results that he offered in the first proposal and, therefore,
that he is barred from recovering on his claims under theories
of an accord and satisfaction, estoppel, and waiver.

Bane and

PCE, however, now appear to have abandoned those defenses.
Moulton contends that Bane and PCE cannot raise the affirmative
defense of accord and satisfaction, because it was not pleaded,
and contends that accord and satisfaction, waiver, and estoppel
all fail on the merits.
6

Federal Rule of Civil Procedure 8(c) provides that “a party
must affirmatively state any avoidance or affirmative defense,
including:

accord and satisfaction” in the party’s answer.

“As

a general matter, unpleaded affirmative defenses are deemed
waived.”

Shervin v. Partners Healthcare Sys., Inc., 804 F.3d

23, 52 (1st Cir. 2015).

The court, however, may avoid the

“raise-or-waive rule when equity so dictates and there is no
unfair prejudice to any opposing party.”

Id.

In addition,

defenses not raised at critical stages of the proceedings, such
as summary judgment, may be waived.

See United States v.

Mottolo, 26 F.3d 261, 263 (1st Cir. 1994) (“At summary judgment
on the issue of liability, unproffered affirmative defenses
normally are deemed abandoned.”)
In this case, Bane and PCE did not plead accord and
satisfaction and did not offer accord and satisfaction,
estoppel, or waiver as defenses in opposition to summary
judgment.1 Bane and PCE also have not addressed the defenses in
their post-trial brief and therefore have abandoned them.

See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990); see
also Coons v. Indus. Knife Co., Inc., 620 F.3d 38, 44 (1st Cir.

Bane and PCE did plead waiver and estoppel as affirmative
defenses.
1

7

2010); Higgins v. New Balance Ath. Shoe, Inc., 194 F.3d 252, 260
(1st Cir. 1999).
The circumstances here do not support an equitable
exception to the raise-or-waive rule.

Therefore, the

affirmative defenses of an accord and satisfaction, estoppel,
and waiver are precluded because they were not raised in a
timely fashion and were not sufficiently supported.2
2.

Defense to Liability for Breach of Contract

At trial, despite the summary judgment ruling in Moulton’s
favor on the breach of contract claim, counsel for Bane and PCE
for the first time raised a defense that Bane and PCE were not
liable on Moulton’s claim of breach of contract because Moulton
breached the Assignment and Assumption Agreement by failing to
negotiate the amount of expenses.3

They argue that Moulton’s

breach bars him from recovering damages.

Moulton contends that

the avoidance defense now raised by Bane and PCE is precluded
because it was not pleaded and, furthermore, that it fails on
the merits.

As Moulton has demonstrated in his brief, the affirmative
defenses would also fail on the merits. Because Bane and PCE
waived the defenses and also have not pursued the defenses post
trial, it is not necessary to address them on the merits.
2

Moulton and PCE entered the Assignment and Assumption
Agreement on April 25, 2014, for the purpose of selling the TMH
note to PCE.
3

8

Section 3 of the Assignment and Assumption Agreement
provides as follows:
Additional Purchase Price. The parties acknowledge and
agree that the Initial Purchase Price represents the
principal amount due to the Assignor [Moulton] under the
Loan Documents, that additional interest has accrued and
continues to accrue and that the Assignor has incurred
significant costs and expenses in [his] attempts to collect
the amounts owed to [him] under the Loan Documents and to
preserve the value of the collateral securing such amounts.
Therefore, Assignee [PCE] and Assignor agree that they will
negotiate promptly and in good faith an additional payment
by Assignee to Assignor in respect of such costs and
expenses, such payment to be made no later than June 1,
2014.
Bane and PCE assert that Moulton “refused” to negotiate the
amount of the expenses.
The record shows, however, that Moulton and Rubin kept Bane
apprised of the amount of expenses as they accrued, that they
sought Bane’s input about the expenses, that after the
Assignment and Assumption Agreement went into effect Moulton
provided Bane with another accounting of the expenses with
invoices, and that Moulton met with Bane to discuss the expenses
and other parts of their business relationship.

Therefore, the

record does not support the charge that Moulton refused to
negotiate the expenses and instead shows that Bane failed to
question or challenge the amounts when they were presented or
offer alternative valuations of the expenses he owed.
cannot be expected to negotiate against himself.
9

A party

In addition, even if Moulton had failed to negotiate in
good faith, which is not shown by the record, Bane and PCE are
precluded from raising the issue now.

Bane and PCE rely on

Tech. Plannning Int’l, LLC v. Moore N. Am., Inc., 2003 WL
21228642, at *2 (D.N.H. May 23, 2003), and Butler v. Balolia,
736 F.3d 609, 615 (1st Cir. 2013), to show that Moulton could
not recover expenses when he refused to negotiate.

In both of

the cited cases, however, the plaintiff brought claims of breach
of an agreement to negotiate in good faith and the courts
concluded that such claims were viable.

Bane and PCE did not

bring a counterclaim for breach of the agreement to negotiate in
good faith.

Instead, they are asserting, belatedly, that

Moulton breached the agreement as a defense to Moulton’s breach
of contract claim.

Therefore, neither case supports the defense

raised here by Bane and PCE.
As Moulton argues, an avoidance defense, such as the
breach theory raised here by Bane and PCE, must be raised in the
parties’ responsive pleading.

Fed. R. Civ. Pro. 8(c)(1).

Bane

and PCE did not include the breach theory as a defense in their
answer.

Therefore, the defense fails on the merits and because

it was not pleaded.

10

C.

Inherent Equitable Power

In their post-trial brief, Bane and PCE urge the court to
exercise its inherent equity powers to overturn the summary
judgment ruling that Bane and PCE owe Moulton expenses.

Citing

Cia. Petrolera Caribo, Inc. v. Arco Caribbean, Inc., 754 F.2d
404, 428 (1st Cir. 1985), Bane and PCE argue that it is unfair
to require Bane and PCE to pay the expenses because Moulton is
running stores that would have been part of PCE.
In Cia. Petrolera, the plaintiff appealed summary judgment
on several grounds, including an argument that the district
court erred in holding that the equitable relief of divestiture
was not available under the Clayton Act.

Id. at 406.

Based on

statutory construction of § 16 of the Clayton Act, the appeals
court concluded that “injunctive relief” was not as limited as
the district court had found and that the Clayton Act did not
restrict the court’s inherent power to grant equitable remedies,
including divestiture.

Id. at 428-29.

Cia. Petrolera does not apply here.
seeking an equitable remedy.

Bane and PCE are not

Instead, they are asking the court

to limit the remedy available to Moulton.

They contend that it

would be unfair to allow Moulton to recover on his breach of
contract claim, a determination that was made previously on

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summary judgment, because he now controls the two stores that
PCE hoped would be part of its business.
Bane and PCE first raised their equitable relief theory in
their post-trial brief.

They did not plead a counterclaim for

equitable relief or raise it as a defense to summary judgment.
The request for equitable relief is raised too late and is not
persuasive.
D.

Motion to Dismiss Consumer Protection Act Claim

Counsel for Bane and PCE argued after the close of the
evidence that the Consumer Protection Act (“CPA”) does not apply
in this case because the claims arose from a dispute between
businessmen.

Counsel also argued that the circumstances here do

not support a CPA claim.

Counsel for Moulton pointed out that

under New Hampshire law the CPA does apply in business disputes
and argued that the conduct of Bane and PCE did violate the CPA.
A motion made at the close of the evidence in a jury-waived
trial, asserting that the plaintiff’s evidence is insufficient
to sustain a claim, is governed by Federal Rule of Civil
Procedure 52(c) and is known as a motion for judgment on partial
findings.

See, e.g., Connor B. ex rel. Vigurs v. Patrick, 985

F. Supp. 2d 129, 156 (D. Mass. 2013).

In deciding a motion

under Rule 52(c), the court draws “reasonable inferences and
make[s] credibility determinations” from the testimony and
12

evidence presented at trial.

Diaz Aviation Corp. v. Airport

Aviation Servs., Inc., 716 F.3d 256, 263 (1st Cir. 2013).

The

court must make findings of fact and conclusions of law to
support the decision.

Fed. R. Civ. P. 52(c).

In their post-trial brief, Bane and PCE no longer contend
that the CPA does not apply to business disputes.

Indeed, the

CPA provides a private right of action to any person injured by
violations of the Act, including business entities.
Al Hoyt & Sons, Inc., 162 N.H. 123, 128 (2011).

George v.

Therefore, Bane

and PCE have not shown that the CPA is inapplicable because the
dispute involves business entities.
Bane and PCE also challenge the Consumer Protection Act
claim on the merits, asserting that the facts do not support a
ruling in favor of Moulton.

Moulton disputes that argument.

The challenge to the CPA claim on the merits is addressed in the
context of the court’s findings and rulings below.
E.

Summary Judgment

In the summary judgment order entered in this case on
November 16, 2015, the court ruled that Bane and PCE breached
the agreement with Moulton to pay at least some of the expenses
Moulton incurred, that Bane and PCE also are liable for expenses
paid by Moulton under the claim for promissory estoppel, and

13

that Bane and PCE are liable under the claims for quantum meruit
and unjust enrichment for rent to cover the period of time PCE
used Moulton’s building.

The amount of rent was undisputed, and

the amount owed is $14,796.75.
In his post-trial brief, Moulton cites the background
section of the summary judgment order to support proposed
findings.

For purposes of summary judgment, however, the court

determines whether a genuine dispute about a material fact
exists and whether the moving party is entitled to judgment as a
matter of law.

Fed. R. Civ. P. 56(a).

As such, the court

relies on the properly supported record provided by the parties
to decide the motion but does not make factual findings except
as provided by Federal Rule of Civil Procedure 56(g).
Therefore, the background section in the summary judgment
order does not provide the factual findings for deciding the
remaining claims in the case.

Those findings will be made by

the court based on the evidence presented at trial.
II.

Findings of Fact
The amount of expenses owed as damages was tried and is

addressed here.

In addition, Moulton’s claims for fraudulent

misrepresentation, breach of the covenant of good faith and fair

14

dealing, and violation of the New Hampshire Consumer Protection
Act were tried.
1.

The court makes the following factual findings:4

The Meat House operated retail butcher shops and a

franchise business through a group of enterprises that are
referred to collectively as TMH.
2.

David Bane was a franchisee of TMH and operated a

butcher store under the TMH brand in Summit, New Jersey,
beginning in 2012.
3.

Bane had previously worked on Wall Street and retired

in 2010 from a hedge fund business.
4.

Thomas Moulton owned and operated a small construction

company, a real estate business, and a manufacturing company,
Sleepnet, that produced and sold products used in treating sleep
apnea and respiratory problems.

Moulton’s businesses were

located in Hampton, New Hampshire.
5.

Michael Rubin was Chief Operating Officer and Chief

Financial Officer of Sleepnet.
6.

Moulton leased property to TMH.

7.

In May of 2013, Moulton loaned $150,000 to TMH, secured

by a promissory note and pledge agreements.
Facts material to the fraudulent misrepresentation claim
must be proven by clear and convincing evidence. Hair
Excitement, Inc. v. L’Oreal U.S.A., Inc., 158 N.H. 363, 369
(2009). The remaining claims and issues are decided by a
preponderance of the evidence.
4

15

8.

Under the terms of the note, TMH agreed that upon

default TMH would pay Moulton the costs of collection, including
attorneys’ fees.
9.

Through the pledge agreements, TMH’s individual

stockholders granted to Moulton the right to succeed to their
shares of voting rights in TMH and to step in to operate TMH in
the event of default.
10.

By late 2013, TMH was in financial distress and had

failed to make payments as required by the note.

Moulton hired

an attorney to address repayment of the loan.
11.

Bane was interested in keeping TMH out of bankruptcy

to protect the TMH franchise brand.
12.

Bane was also interested in acquiring the TMH assets,

but his first attempt failed.
13.

Moulton was interested in keeping TMH out of

bankruptcy to avoid having his note discharged.
14.

Moulton was also interested in the business

opportunity that TMH might provide.
15.

In late February of 2014, Bane and Moulton agreed to

work together to save TMH from bankruptcy and to develop a new
business to run the TMH assets.

16

16.

Moulton wanted to get his note paid, and Bane wanted

Moulton’s assistance to acquire TMH’s assets from its secured
lender, Centrix Bank.
17.

Moulton and Bane agreed that Bane would form a new

company to operate TMH by buying Moulton’s promissory note and
buying TMH’s assets in an Article 9 sale through Centrix Bank.
18.

Moulton and Bane also agreed that Bane would reimburse

Moulton for his expenses and provide Moulton with equity, which
Bane called “Deal Stock,” in the new company to be formed to
operate TMH.
19.

Deal Stock was to be equity in the new company that

Moulton would get, without additional monetary investment,
because of his role in helping to put the deal together.

Deal

Stock would provide Moulton with an ownership interest in the
new business.
20.

Bane knew when he promised Deal Stock to Moulton that

the availability of Deal Stock would depend on the valuation of
the new company, but Bane did not explain that contingency to
Moulton.
21.

In early March, TMH defaulted on the note, and Moulton

began taking steps to exercise his step-in rights under the
security agreements.

17

22.

Moulton agreed with Bane that he would exercise his

step-in rights to take control of TMH and would assist Bane in
acquiring the TMH assets from Centrix Bank.
23.

Bane knew that Moulton had lawyers evaluating the

priority of Moulton’s step-in rights in order to secure his
priority and to facilitate Bane’s acquisition of the TMH assets.
24.

On March 6, 2014, Moulton exercised his step-in rights

and took control of TMH.
25.

Rubin and Moulton then managed TMH and worked to keep

TMH out of bankruptcy, to prevent creditors and landlords from
taking the assets, and to deal with dissatisfied franchisees.
26.

Another TMH franchisee, Kevin O’Donnell, offered to

buy the TMH loan from Moulton and pay his expenses, but Moulton
was not interested in that proposal because there was no
opportunity for him to have an ownership interest in the
business going forward.
27.

Moulton, Rubin, and Bane planned to meet for dinner on

March 12.5
28.

On March 11 in anticipation of their meeting, Bane

sent Moulton an email that provided three scenarios for
structuring the new company.

In each of the scenarios, Moulton

The date of the meeting is somewhat unclear, but the exact
date is not material.
5

18

would have at least 20% equity in the new company provided by
deal stock, with some options for increasing his equity
position.
29.

Bane told Moulton that Moulton’s request for 45%

equity in the new company through deal stock “got push back from
the investors.”
30.

Contrary to his representation to Moulton that he got

push back from the investors, Bane never told the investors
about Moulton or the agreement to give Moulton Deal Stock.
31.

After Moulton took control of TMH, TMH franchisees

sent termination letters and other legal issues arose.
32.

Moulton paid the operational expenses for TMH and also

incurred legal expenses in operating TMH and planning for a new
company.
33.

Bane knew that Moulton, Rubin, and Moulton’s lawyers

were working on behalf of TMH and that Moulton was paying the
costs of defending TMH, the costs of operating TMH, and the
costs of preparing for the new company.
34.

Moulton, Rubin, and Bane continued to discuss plans

for the new company that would be formed to operate TMH, and
Bane continued to represent that Moulton would have Deal Stock
in the new company.

19

35.

Bane knew that the termination of TMH franchises

greatly reduced the value of the deal that Bane and Moulton had
entered into so that the opportunity for Deal Stock was also
greatly reduced, if it were available at all.
36.

Bane did not tell Moulton that the availability of

Deal Stock would be reduced or that Deal Stock might not be
available at all.
37.

At the end of March, Bane formed PCE to acquire the

assets of TMH.
38.

Bane instructed Moulton and Rubin to continue to

respond to default notices from franchisees and to legal action
against TMH and to be sure that TMH did not incur liability in
those matters.
39.

By early April, Bane decided that the amount of

investment needed for PCE precluded Deal Stock, but he did not
tell Moulton that Deal Stock would not be available.
40.

On April 4, 2014, Rubin proposed to Bane that Bane

would pay the amount of the TMH note plus expenses at the time
of the Article 9 sale of the TMH assets.
41.

Also on April 4, 2014, Rubin provided Bane with an

estimate of expenses incurred to that point of $71,795.

20

42.

Bane responded that the amount of expenses was “fine”

but said that he would like to delay payment of expenses until
PCE was funded and could make the payment.
43.

Moulton and Rubin thought that Bane’s response meant

that there would be two categories of expenses: expenses
incurred in TMH “debt collection” and expenses incurred on
behalf of the new company that became PCE.

Moulton and Rubin

thought Bane intended to delay only the expenses incurred for
PCE, not the debt collection expenses, and agreed to that delay.
44.

Bane thought of the expenses as a single entity, not

divided between debt collection and new company expenses, and
thought that Moulton and Rubin had agreed to let him pay all of
the expenses after the new company was formed and funded.
45.

Rubin worked with lawyers to arrange the Article 9

asset sale for PCE.
46.

On April 15, 2014, PCE acquired TMH’s assets for

$790,000 at an Article 9 sale conducted by Centrix Bank.
47.

Bane did not reimburse Moulton for any expenses or

purchase the TMH note at that time.
48.

Eric Emery, a former TMH employee, began to work with

Bane on PCE.

21

49.

Moulton was concerned that Bane had purchased the TMH

assets but had not purchased the TMH loan or paid expenses,
leaving Moulton with TMH’s liabilities without its assets.
50.

Bane planned to leave on April 18 for a week-long

family vacation in Costa Rica.
51.

On April 17, Moulton asked Bane to pay him for the TMH

note and the expenses before Bane left and also said that he
wanted to finalize their arrangement concerning PCE, including
the Deal Stock, during the week after Bane got back.
52.

Also on April 17, Rubin sent Bane an email with an

itemization of the expenses, separating the costs for debt
collection from the costs related to PCE.
53.

Bane reassured Moulton that the deal would work out

and that Moulton need not be anxious.
54.

Moulton expected that Bane would pay the debt

collection expenses when he bought the TMH note.
55.

The only item of the expenses Bane challenged was the

amount for salary paid to Rubin.
56.

Bane left for vacation on April 18 without buying the

TMH note or paying any expenses.
57.

During his vacation, Bane was irritated by

communications from Moulton and Rubin about buying the note and

22

paying expenses because he did not want to work with them while
vacationing.
58.

Bane communicated with Emery about work while on

vacation, which amounted to 231 emails and text messages, while
there were only three emails with Moulton.
59.

On April 22, while on vacation, Bane told Emery to

begin to separate from Moulton and Rubin and to do as much as
possible without including them.

Bane made several anti-Semitic

remarks aimed at Moulton and Rubin.
60.

Bane also told Emery that there would be no Deal Stock

for Moulton and that the “joke” would be on Moulton and Rubin.
61.

Bane instructed Emery not to let Moulton know that he

would not get Deal Stock.
62.

While Bane was away, Moulton and Rubin continued to

work on behalf of PCE and continued to pay expenses and payroll
for PCE.
63.

Bane told Emery not to tell Moulton that Bane would be

in New Hampshire after he returned from vacation and instructed
Emery to get a lease agreement for the TMH store in Stratham,
New Hampshire, with a landlord who was a friend of Moulton’s
before Moulton was told he would not get Deal Stock.
64.

Under the Assignment and Assumption Agreement dated

April 25, 2014, PCE purchased the TMH note and voting rights
23

agreements from Moulton for $136,827.33.
the principal due on the note.

That amount satisfied,

The additional payment for costs

and expenses were due no later than June 1, 2014.
65.

On April 27, Bane asked Moulton to send invoices for

the expenses so that Bane could pay Moulton.
66.

On April 28, Rubin sent Bane an accounting of the

expenses, with invoices, for expenses totaling $107,537.34.
67.

In response, Bane told Rubin not to incur more

expenses and that there were too many lawyers “on the clock.”
68.

In further communications, Bane acknowledged that he

owed Moulton $100,000 in expenses.
69.

Bane and Moulton met on May 2 to discuss their plans.

70.

Bane told Moulton that he would not get Deal Stock in

PCE but offered him the opportunity to invest on the same
footing with other investors.
71.

Moulton declined Bane’s offer and proposed that they

part ways by dividing the PCE (formerly TMH) assets.
72.

Moulton first proposed that Bane would not pay the

expenses he owed and instead would keep the franchising part of
the business, while Moulton would take the stores in Scarborough
and Stratham.

Bane rejected that offer on the ground that the

stores were more valuable than franchising.

24

73.

Moulton then reversed the offer and proposed that Bane

keep the stores and not pay the expenses and Moulton would take
franchising.
74.

Bane rejected that offer too.

On May 16, Bane told Emery that he owed Moulton for

the expenses and planned to pay them but was waiting to see “how
much bs he causes.”
75.

As determined on summary judgment, Bane and PCE owe

Moulton rent in the amount of $14,796.75, for the office space
used by PCE.
76.

Moulton ultimately arranged to lease the Stratham and

Scarborough stores and opened his own butcher stores at those
locations under the name Great East Butcher Company.
III.

Rulings of Law
The amount of damages owed on the breach of contract claims

or, alternatively, on the promissory estoppel claim was tried.
The claims presented at trial were Moulton’s claims against Bane
and PCE for fraudulent misrepresentation, breach of the implied
covenant of good faith and fair dealing, and violation of the
New Hampshire Consumer Protection Act.
resolve the remaining issue and claims.

25

The following rulings

A.

Damages for Breach of Contract and Promissory Estoppel

Moulton was granted summary judgment on his breach of
contract and promissory estoppel claims, which sought the
expenses that Moulton paid to support their joint business
venture.6

The issue that was tried was the amount of expenses to

be awarded as damages.
Bane and PCE agreed to reimburse Moulton for the expenses
he incurred to collect the TMH loan, to protect the TMH assets,
and to set up and operate PCE.

Moulton asks that damages be

awarded in the amount of $99,137.34.

That figure is the amount

of the expenses incurred, $107,537.34, less $6,500 for Rubin’s
time, and $1,900 taken off of the bills from the law firm,
Hoefle, Phoenix, Gormley, & Roberts, P.A.
In their post-trial brief, Bane and PCE argue that Bane
only agreed to pay the out-of-pocket costs of running the TMH
stores and did not agree to pay the legal fees Moulton incurred
in collecting the loan and protecting the TMH assets.

The

record, however, shows that Bane was informed of the expenses as
they accrued and the purpose for which they were being incurred,
and that he agreed to pay all of the expenses, including legal
fees, that Moulton incurred.

He also acknowledged that he owed

Because Moulton can recover the damages only once, the
amount of damages for the two claims is decided together.
6

26

Moulton $100,000 in expenses.

Therefore, Bane and PCE are

liable for the expenses Moulton incurred in the amount of
$99,137.34.
B.

Breach of the Implied Covenant of Good Faith and Fair
Dealing

Under New Hampshire law, the implied covenant of good faith
and fair dealing applies in three different contractual
contexts:

contract formation, termination of at-will contracts,

and discretion in contract performance.
Genicom Corp., 132 N.H. 133, 139 (1989).

Centronics Corp. v.
In the context of

contract formation, the covenant imposes “the traditional duties
of care to refrain from misrepresentation and to correct
subsequently discovered error, in so far as any representation
is intended to induce, and is material to, another party’s
decision to enter into a contract in justifiable reliance on
it.”

Id.; see also Bursey v. Clement, 118 N.H. 412, 414 (1978).

The covenant also restricts a party’s exercise of discretion in
performing the contract when “the agreement ostensibly allow[s]
to or confer[s] upon the defendant a degree of discretion in
performance tantamount to a power to deprive the plaintiff of a
substantial proportion of the agreement’s value.”
132 N.H. at 144.

27

Centronics,

Moulton contends that Bane misrepresented that Moulton
would have Deal Stock for the purpose of inducing him to agree
to exercise his step-in rights to take over TMH, to preserve the
value of TMH assets, and to facilitate PCE’s acquisition of the
TMH assets.

Moulton also argues that during their business

relationship Bane improperly exercised his discretion to deprive
Moulton of Deal Stock.

As is explained in more detail in

context of the claims for fraudulent misrepresentation and
violation of the CPA, the evidence supports Moulton’s claims.
The damages Moulton seeks, however, are the same expenses that
he has been awarded under his breach of contract and promissory
estoppel claims.
Therefore, although Bane and PCE are liable for breach of
the implied covenant of good faith and fair dealing, no
additional damages are awarded.
C.

Fraudulent Misrepresentation

Moulton’s fraud claim is that at the beginning of their
relationship Bane knowingly or recklessly promised Moulton Deal
Stock, in exchange for Moulton’s work to preserve TMH’s assets
and to facilitate the sale of the assets to Bane’s new company
and for paying expenses on behalf of their business venture.
Moulton contends that he justifiably relied on Bane’s
misrepresentations that he would be given Deal Stock and in
28

reliance he did the work as agreed and incurred expenses.

As

such, Moulton’s claim is that the fraud induced Moulton to
participate in the business venture with Bane.
To prove fraud under New Hampshire law, the plaintiff must
show that the defendant made a fraudulent misrepresentation to
him “for the purpose of inducing [him] to act or to refrain from
action in reliance” on the misrepresentation and that he
justifiably relied on the misrepresentation.
Rockefeller, 162 N.H. 324, 331-32 (2011).

Tessier v.

A misrepresentation

is made fraudulently if it is “‘made with knowledge of its
falsity or with conscious indifference to its truth and with the
intention of causing another person to rely on the
representation.’”

Id. at 332 (quoting Patch v. Arsenault, 139

N.H. 313, 319 (1995)); see also Manchester Bank v. Conn. Bank &
Tr. Co., 497 F. Supp. 1304, 1316-17 (D.N.H. 1980) (“And if a
false statement is made recklessly with a conscious indifference
to its truth and without considering whether it is true or
false, its fraudulent charter is made out.” Citing Saidel v. The
Union Assurance Society, 84 N.H. 232, 149 A. 78, 80 (1930)).
In addition, “a representation which was true when made could be
fraudulent if the maker failed to disclose the subsequent
information which made the original representation a false one.”
Manchester Bank, 497 F. Supp. at 1316.
29

The standard for justifiable reliance is subjective,
“‘based on the plaintiff’s own capacity and knowledge.’”
Trefethen v. Liberty Mut. Group, Inc., 2013 WL 2403314, at *7
(D.N.H. May 31, 2013) (quoting Smith v. Pope, 103 N.H. 555, 559
(1961)).

Fraud must be proved by clear and convincing evidence.

Hair Excitement, 158 N.H. at 369.
The evidence at trial shows that Bane offered Moulton Deal
Stock as part of their initial agreement to work together and
called their arrangement “operation 50%.”

Bane offered Deal

Stock, which was something unfamiliar to Moulton, to induce
Moulton to enter the business arrangement that would allow Bane
to acquire TMH’s assets.

Bane bolstered his initial

representations by providing three scenarios about the amount of
Deal Stock that Moulton would have in amounts that ranged from
20% to 40%.

Bane falsely told Moulton that he would not be able

to have a 45% ownership of the new company through Deal Stock
because that amount had elicited “push back” from the investors.7
Bane knew when he promised Deal Stock to Moulton that he
could not provide Deal Stock until he knew the valuation of the
new company.

He did not tell Moulton that any Deal Stock

depended on the valuation of the new company.

Instead, he

In fact, Bane had not told the investors about the Deal
Stock plan or even that Moulton was involved in the new company.
7

30

continued to reinforce his initial promise that Moulton would
get Deal Stock.
The evidence shows, clearly and convincingly, Bane promised
Moulton Deal Stock when Bane knew he could not make that
promise.

Bane represented to Moulton that he would have a

substantial ownership interest in the new company, through Deal
Stock, when he knew that ownership could not be determined until
the investment and valuation of the new company were complete.
As such, Bane was at least reckless, that is, consciously
indifferent to the truth of his representations to Moulton about
Deal Stock, and Bane made those false representations to induce
Moulton’s participation in the business venture.
Based on Bane’s representations that Moulton would receive
Deal Stock in the new company, Moulton entered the business
venture with Bane, worked on behalf of Bane and PCE, provided
office space for PCE, facilitated the sale of TMH’s assets to
Bane, and incurred expenses.

Moulton’s reliance on Bane’s

representations was justified.
Therefore, the court finds and rules that Moulton has
proved his claim of fraudulent misrepresentation against Bane
and PCE.

Because Moulton seeks the same damages that were

awarded for breach of contract, no additional damages are
awarded.
31

D.

Violation of the New Hampshire Consumer Protection Act

Moulton’s claim that Bane and PCE violated the CPA is
broader than the claim for fraudulent misrepresentation.
Moulton’s claim under the CPA includes the theory of fraud in
the inducement, as in the fraudulent misrepresentation claim,
but also extends to Bane’s continuing conduct through the
business relationship.

Moulton contends that Bane promised him

Deal Stock and then intentionally deceived him about Deal Stock,
until the relationship terminated, while Bane either never
intended to provide Deal Stock or knew that he lacked the
information to promise Deal Stock.

Bane and PCE argue that the

record shows only ordinary business dealings and that
circumstances changed so that Deal Stock could not be part of
the arrangement.
New Hampshire’s Consumer Protection Act, RSA Chapter 358-A,
provides that it is “unlawful for any person to use any unfair
method of competition or any unfair or deceptive act or practice
in the conduct of any trade or commerce within this state.”
358-A:2.

RSA

The CPA provides a private right of action to any

person injured by violations of the Act, including business
entities.

George, 162 N.H. at 128.

Section 358-A:2 lists sixteen actions that fall within its
prohibition, but that is not an exhaustive list of prohibited
32

methods, acts, or practices.

ACAS Acquisitions (Precitech) Inc.

v. Hobert, 155 N.H. 381, 402 (2007).

If the challenged conduct

is not listed in RSA 358-A:2, to be actionable it “must attain a
level of rascality that would raise an eyebrow of someone inured
to the rough and tumble of the world of commerce.”

Axenics,

Inc. v. Turner Constr. Co., 164 N.H. 659, 675 (2013).

Claims

under the CPA must be proved by a preponderance of the evidence.
See Town of Wolfeboro v. Wright-Pierce, Inc., 2014 WL 1976629,
at *5 (D.N.H. May 15, 2014); eClipse Enter. Solutions, LLC v.
EndoCeutics, Inc., 2012 WL 3688510, at *4 (D.N.H. Aug. 27,
2012).
An ordinary breach of contract is not sufficient to meet
the rascality test necessary to show a violation of the CPA.
George, 162 N.H. at 129.

On the other hand, a defendant who

induces the plaintiff “to enter a contract based on a knowing
misrepresentation of the promisor’s intent to perform under the
contract violates [the Consumer Protection Act].”

Derry &

Webster, LLC v. Bayview Loan Servicing, LLC, 2014 WL 7381600, at
*6 (D.N.H. Dec. 29, 2014) (citing George, 162 N.H. at 675); see
also Beer v. Bennett, 160 N.H. 166, 171-72 (2010).

Similarly,

misrepresentations made by a defendant in an ongoing effort to
avoid performing under an agreement, when the defendant did not
intend to perform, also violate the CPA.
33

State v. Sideris, 157

N.H. 258, 263 (2008); State v. Moran, 151 N.H. 450, 454 (2004);
see also Butler v. Moore, 2015 WL 1409676, at *94 (D. Mass. Mar.
26, 2015) (decided under Massachusetts CPA).8
As discussed in the context of the fraudulent
misrepresentation claim, Bane misrepresented to Moulton that he
would get Deal Stock to induce Moulton to agree to their
business venture.

After the initial decision to work together,

Bane continued to represent that Moulton would get Deal Stock.
By early April, Bane had decided that the amount of investment
in PCE would not allow Deal Stock because of the valuation of
the company.

He did not inform Moulton of the change of plans

because Moulton had not yet facilitated sale of the TMH assets
to PCE and because Moulton was working on behalf of PCE,
including paying expenses and providing office space for PCE.
Bane knew that Moulton expected Deal Stock and was continuing to
work on behalf of PCE based on that expectation.
On April 22, Bane told Emery that Moulton would not get
Deal Stock, that Emery should conceal that decision from
Moulton, and that the “joke” would be on Moulton and Rubin.
Bane did not tell Moulton that he would not get Deal Stock until

The New Hampshire Supreme Court has relied on the
Massachusetts CPA and cases interpreting the Act for guidance.
See Remsburg v. Docusearch, Inc., 149 N.H. 148, 160 (2003).
8

34

May 2, when their business relationship had frayed to the point
of breaking.
Bane concealed the Deal Stock decision from Moulton so that
Moulton would continue to work on behalf of PCE, which included
facilitating the sale of the TMH assets to PCE, paying expenses
for PCE, using his influence to obtain store leases, maintaining
operations while Bane vacationed, and providing office space to
PCE.

By concealing his decision not to give Moulton Deal Stock,

as he had agreed to do, while reaping the benefits of Moulton’s
efforts that were based on the expectation of Deal Stock, Bane
violated the CPA.
E.

Application of the Consumer Protection Act

“If the court finds for the plaintiff [in an action brought
under RSA chapter 358-A], recovery shall be in the amount of
actual damages or $1,000, whichever is greater.”
I.

RSA 358-A:10,

“In addition, a prevailing plaintiff shall be awarded the

costs of the suit and reasonable attorney’s fees, as determined
by the court.”

Id.; see also State v. Mandatory Poster Agency,

Inc., --- N.H. ---, 126 A.3d 844, 848 (2015).

“If the court

finds that the use of the method of competition or the act or
practice was a willful or knowing violation of this chapter, it
shall award as much as 3 times, but not less than 2 times, such
amount.”

RSA 358-A:10, I.
35

Moulton seeks as actual damages the expenses he paid in
reliance on the promise of Deal Stock, including the rent for
office space provided to PCE, which total $113,934.09.

Moulton

also seeks an award of costs, including attorneys’ fees.

In

addition, Moulton contends that Bane and PCE acted willfully or
knowingly and asks the court to treble the damages award.

Bane

and PCE contend that they did not violate the CPA and that the
lack of Deal Stock was the result of a change in circumstances.
They do not address the issue of multiple damages.
Bane did not inform Moulton about the true nature of Deal
Stock or that he had changed his mind about Deal Stock.

By

early April, Bane had decided that the valuation of PCE would
not support Deal Stock.

Bane knew that the Deal Stock promise

was important to Moulton and motivated him to continue in their
business arrangement but failed to keep Moulton apprised of the
investment situation in PCE and Bane’s decision about Deal
Stock.

At least by April 22, Bane intended to mislead Moulton

into thinking that Deal Stock continued to be part of their
arrangement when he did not intend to provide Deal Stock.9

At trial, Bane testified that he could have given Moulton
Deal Stock, although it would have been a small amount. He
acknowledged that when they met in May he told Moulton he would
not get Deal Stock, even though Bane could have provided Deal
Stock.
9

36

Bane expressed his intent to deceive Moulton in his
communications with Emery while he was in Costa Rica.

Bane

wrote that the “joke” about no Deal Stock would be on Moulton
and Rubin.

Bane explained to Emery that the deception about

Deal Stock was necessary so that Moulton would continue to work
on behalf of PCE.

The angry tone of Bane’s communications about

Moulton with Emery and the lack of information provided to
Moulton reinforce the evidence of Bane’s intent to deceive
Moulton.10

When Bane returned from vacation, he continued to

deceive Moulton about the true state of affairs and did not
divulge the truth about the Deal Stock until Moulton insisted on
a meeting.
The court finds and rules that Bane’s misrepresentations
and material omissions to Moulton about Deal Stock were knowing
uses of deceptive acts in the conduct of commerce within New
Hampshire in violation of the CPA, RSA 358-A:2.

Bane attempts to explain his remarks as the result of
excusable irritation that Moulton and Rubin were interrupting
his vacation. He blames the situation, at least in part, on his
wife, whom he says was unhappy that he was working rather than
vacationing. The record shows, however, that Bane chose to
leave on a week’s vacation at a crucial time in the development
of the business and that he expected Moulton and Rubin, along
with Emery, to manage his business affairs while he was gone.
Although he asserts that he did not have time to communicate
with Moulton and Rubin about business matters, the record shows
that he spent considerable time communicating with Emery about
plans to exclude Moulton and Rubin from the agreed arrangement.
10

37

When a defendant knowingly uses deceptive acts in commerce
in this state, there is a mandatory minimum award of at least
double damages.

RSA 358-A:10, I; George, 162 N.H. at 138.

The

New Hampshire Supreme Court has not defined the method for
determining whether to award double or treble damages.

In other

cases, the damages multiplier under consumer protection statutes
generally depends on the nature of the defendants’ actions.
See, e.g., AngioDynamics, Inc. v. Biolitec AG, 780 F.3d 429, 437
(1st Cir. 2015); Ocean Spray Cranberries, Inc. v. PepsiCo.,
Inc., 160 F.3d 58, 62 (1st Cir. 1998); Gabriel v. Jackson Nat’l
Life Ins. Co., 2015 WL 1410406, at *21 (D. Mass. Mar. 26, 2015);
B & R Produce Packing Co., Inc. v. A & H Farms, Inc., 2014 WL
576210, at *3 (D.N.H. Feb. 11, 2014); Mattress Discounters Gr.,
LLC v. Maximum Inv. LLC, 2011 WL 5827309, at *1 (D.N.H. Oct. 19,
2011); Polycarbon Indus., Inc. v. Advantage Eng’g, Inc., 260 F.
Supp. 2d 296, 307 (D. Mass. 2008).
In this case, the court finds and rules that double damages
is an appropriate award.

Therefore, Moulton is entitled to

$227,868.18 in damages against Bane and PCE for violating the
CPA.

38

In addition, under RSA 358-A:10, I, Moulton is entitled to
the costs of the suit, including attorneys’ fees.11

New

Hampshire law controls the calculation of an award of the costs
of the suit when, as here, the award is based on a New Hampshire
statute.
(2012).

See Town of Barrington v. Townsend, 164 N.H. 241, 250
Moulton shall file a motion for the costs of the suit

in accordance with the legal standard for awarding costs, under
New Hampshire law, accompanied by appropriate and detailed
evidentiary support.
Conclusion
For the foregoing reasons, the defendants’ motion, under
Rule 52(c), to dismiss the CPA claim is denied.
The court finds and rules that Moulton is entitled to
$99,137.34 in damages on his breach of contract claim (Count I)
and promissory estoppel claim (Count II) and to $14,796.75 in
damages on his quantum meruit claim (Count VI) and unjust
enrichment claim (Count VII) against Bane and PCE.
The court finds and rules in favor of Moulton on his claim
for fraudulent misrepresentation (Count III) and his claim for
breach of the implied covenant of good faith and fair dealing

Because attorneys’ fees are awarded under RSA 358-A:10, the
court need not address Moulton’s request for fees under Keenan
v. Fearon, 130 N.H. 494 (1988).
11

39

(Count IV) against Bane and PCE.

Moulton seeks the same damages

in Count III and Count IV as are awarded on Counts I, II, VI,
and VII.

Therefore, no additional damages are awarded on Counts

III an IV.
The court finds and rules in favor of Moulton on his claim
against Bane and PCE for violation of RSA 358-A:2 (Count V).
The damages awarded are $227,868.18.
Because the damages awarded for violation of RSA 358-A:2
encompass the damages awarded for Counts I, II, VI, and VII, the
total amount of damages awarded is $227,868.18.
Moulton also is entitled to an award of the costs of the
suit, including attorneys’ fees, under RSA 358-A:10.
Moulton shall file a motion for an award of costs under
358-A:10, as provided in this order, on or before April 11,
2016.

Bane and PCE shall file their response within fourteen

days from the date the motion is filed.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
March 21, 2016
cc: Anna B. Hantz, Esq.
Michele E. Kenney, Esq.
Deborah Ann Notinger, Esq.
Richard Roth, Esq.
William B. Pribis, Esq.
Nathan P. Warecki, Esq.
40