Christopher Behlau v. Tiger Tiger Productions, LLC

2021 DNH 052

• Court: District Court, D. New Hampshire
• Decided: March 16, 2021
• Docket: 20-cv-350-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christopher Behlau

v. Civil No. 20-cv-350-JD Opinion No. 2021 DNH 052 Tiger Tiger Productions, LLC

O R D E R

Christopher Behlau brought suit against Tiger Tiger

Productions, LLC. (“Tiger”), a film production company, alleging

that Tiger breached the parties’ loan agreement. Tiger moves

for summary judgment on the ground that Behlau’s claim is barred

by the statute of limitations. Behlau objects to summary

judgment.

Standard of Review

“Summary judgment is appropriate when the moving party

shows that ‘there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.’”

Joseph v. Lincare, Inc., --- F.3d ---, 2021 WL 791615, at *6

(1st Cir. Mar. 2, 2021) (quoting Fed. R. Civ. P. 56(a)). In

making that determination, the court construes the record in the

light most favorable to the nonmoving party. Thompson v. Gold

Medal Bakery, Inc., --- F.3d ---, 2021 WL 791610, at *5 (1st

Cir. Mar. 2, 2021). To avoid summary judgment, the nonmoving

party “must adduce specific facts showing that a trier of fact could reasonably find in his favor” and “cannot rely on

conclusory allegations, improbable inferences, acrimonious

invective, or rank speculation.” Id.

Background

Behlau loaned $150,000 to Tiger to produce a documentary

film about Bengal tigers. The parties’ dispute, for purposes of

the motion for summary judgment, is whether Behlau and George

Butler, Tiger’s single member, amended the loan agreement. If

the agreement was amended, the loan was due in March of 2013,

which Tiger contends means that the breach of contract claim is

beyond the limitations period. If the agreement was not

amended, there was a five-year period for repayment, making the

loan due in April of 2017, within the limitations period.

Behlau and Butler agreed to the loan and its terms in April

of 2012 through email communications.1 The agreement included a

five-year repayment term. The agreement also included a

provision that allowed either party the option to convert the

loan obligation into units of interest in a future offering to

investors.

1 Although there may have been dispute in the past about whether an agreement was reached in April of 2012, for purposes of the pending motion for summary judgment, the parties do not dispute the April agreement.

2 Following the April agreement and loan, Behlau was involved

in Tiger’s fundraising and became concerned about whether his

loan would be repaid. On October 20 and 24, 2012, Behlau and

Butler met in New York to discuss Behlau’s proposal that he

would not convert the loan to equity interest in Tiger and that

instead of a five-year term for repayment, he would be repaid on

commencement of filming. Butler told Behlau to put his proposed

amendments in writing. In December, Behlau sent Butler a letter

that is dated November 1, 2012, outlining the proposed amended

agreement.2 The proposed terms were that he opted not to convert

the loan into equity in Tiger and that the loan was due to be

repaid no later than the commencement of filming in the Tiger

documentary project. He also included a promissory note. The

letter stated that if Butler agreed to the terms, he would

indicate his agreement by signing the promissory note and the

letter. Butler did not sign the November 1 letter or the note.

Filming of the Tiger movie began in March of 2013. Butler

did not repay the loan upon commencement of filming or

thereafter. Behlau met Butler on April 2, 2013, in Bangladesh,

where Behlau raised their October meetings and his proposal to

amend their agreement. Butler denied knowledge of such an

agreement. Butler offered different repayment terms, but Behlau

2 Behlau states that he sent the letter to Butler in December of 2012, although the letter is dated November 1, 2012.

3 did not agree. Behlau never received a proposal from Butler in

writing.

Behlau sought repayment of the loan and was represented by

Attorney LynnAnn Klotz for that purpose. Klotz sent a letter,

dated July 25, 2013, to Butler’s attorney, seeking repayment.

In the letter, Klotz stated that the most pressing issue was

repayment of the loan Behlau made to Tiger. She reviewed the

history of Behlau’s dealings with Butler from April of 2012,

through October of 2012, to July of 2013. Klotz stated that

during the meeting between Behlau and Butler on October 20,

2012, in New York, “our clients agreed that the Loan would be

repaid no later than commencement of principal photography of

the Film.” Doc. 16-3, at *2. She further stated that “[o]n

December 20, 2012, [Butler] was provided with written

confirmation of this conversation (the ‘Non-convert Letter’,

and, the ‘Promissory Note’), copies of which have been

previously provided to you.” Id. Klotz stated that Butler

continued to assert that Behlau converted the loan into equity

in Tiger and also continued to try to convince Behlau to agree

to that change. She provided terms to settle the repayment

dispute. That effort was unsuccessful.

4 Behlau states that he and Butler continued to try to come

to terms about repayment of the loan. Butler continued his

efforts to convince Behlau to convert the loan to an equity

interest. No further agreement was reached.

Discussion

Behlau alleges in the complaint that Tiger breached the

loan agreement by not repaying his loan within five years of

April of 2012, that is, by April of 2017. Tiger moves for

summary judgment, arguing that the loan agreement was amended to

require payment upon commencement of filming, which occurred in

March of 2013. Because the failure to pay in March of 2013

occurred outside the limitations period, Tiger contends the

breach of contract claim is barred by the statute of

limitations.

A. Choice of Law

Tiger contends that the suit is untimely under either New

York’s six-year statute of limitations or New Hampshire’s three-

year statute of limitations, without engaging in a choice-of-law

analysis. Behlau does not address the potential issue of the

applicable statutory limitations period. When a question arises

as to which law governs, this court employs New Hampshire’s

choice-of-law principles and must determine whether the relevant

5 New Hampshire law conflicts with the law of other interested

states. Caldwell v. Atrium Med. Corp., 2019 WL 4600382, at *3

(D.N.H. Sept. 23, 2019). A conflict exists only if another

state’s law would change the outcome. Id.

In this case, although the limitation periods are

different, the outcome would be the same under New York and New

Hampshire law. If the loan agreement was amended in October of

2012 and the breach occurred in March of 2013, the suit filed in

March of 2020 would be untimely under both New York and New

Hampshire law. If, on the other hand, the agreement was not

amended and the original five-year term of repayment applies,

the breach did not occur until April of 2017, and the suit would

be timely under both New York and New Hampshire law. Therefore,

as no conflict exists, the court will apply New Hampshire law.

Under New Hampshire law, the limitations period for a

breach of contract claim begins when the contract is breached.

Coyle v. Battles, 147 N.H. 98, 100 (2001). The applicable

limitations period is three years. RSA 508:4; Coyle, 147 N.H.

at 100. There is no issue in this case that implicates the

discovery rule in RSA 508:4.

B. When Did Breach Occur

As stated above, the date of the breach depends on whether

the original April 2012 loan agreement remained in effect or

6 whether the agreement was amended in October of 2012. Tiger

contends that the agreement was amended in October of 2012 to

require repayment in March of 2013, so that the breach occurred

then. In support, Tiger primarily relies on Attorney Klotz’s

statement in her letter of July 2013, as an admission by Behlau.

Behlau disputes the admissibility of the statement and contends

that the evidence shows that no meeting of the minds occurred in

October of 2012 to amend the agreement and change the due date

to March of 2013.

For purposes of summary judgment, “[t]o succeed in showing

that there is no genuine dispute of material fact, the moving

party must direct us to specific evidence in the record that

would be admissible at trial.” Ocasio-Hernandez v. Fortuno-

Burset, 777 F.3d 1, 4 (1st Cir. 2015). Using that evidence, the

moving party may “negate[] an essential element of the non-

moving party’s claim” or “demonstrate that the non-moving party

will be unable to carry its burden of persuasion at trial.” Id.

at 5. Summary judgment is appropriate if the moving party shows

that the plaintiff’s claim is “deficient in vital evidentiary

support.” Id.

1. Klotz’s Letter

Tiger contends that Klotz’s statement about repayment of

the loan in the July 2013 letter to Tiger’s counsel is an

7 admission by Behlau that the agreement was amended and the due

date was changed to March of 2013.3 Behlau contends that Klotz’s

letter was a demand that was sent as part of negotiations to

settle the dispute about repaying the loan and argues that the

statement is inadmissible under Federal Rule of Evidence 408.

In response, Tiger argues that Behlau is bound by the admission,

which is admissible under Federal Rule of Evidence 801(d)(2).

a. Demand for Purposes of Settlement

Federal Rule of Evidence 408(a) prohibits parties from

offering as evidence “a statement made during compromise

negotiations about the claim” for the purpose of “prov[ing] or

disprove[ing] the validity . . . of a disputed claim or to

impeach by a prior inconsistent statement or a contradiction.”

Tiger does not dispute that the statement in the letter was made

as a part of settlement negotiations. Instead, Tiger argues

that the statement is not barred by Rule 408 because it is not a

concession by Behlau.

To show that evidence of settlement negotiations, which are

not concessions, may be admissible, Tiger relies on Gelinas v.

3 Klotz wrote, referring to the meeting in October of 2012: “[O]ur clients agreed that the Loan would be repaid no later than commencement of principal photography of the Film.” Doc. no. 16-3, at *2.

8 Metro. Prop. & Liab. Ins. Co., 131 N.H. 154, 166 (1988). There,

the New Hampshire Supreme Court considered a claim that the

insurance company was negligent in failing to settle a claim in

an underlying suit within the policy limits so that the company

was liable for the verdict in excess of the policy limit, a so-

called Dumas claim. The court considered whether evidence of

the settlement negotiations was admissible under New Hampshire

Rule of Evidence 408. Because the insurance company’s actions

during settlement negotiations were at issue for purposes of the

Dumas claim, evidence of the negotiations was admissible. Id.

at 165-66.

The decision in Gelinas is inapplicable here. This is not

a Dumas action, and Gelinas was decided under the New Hampshire

rule. Therefore, it has no persuasive effect here. Federal

Rule of Civil Procedure 408 governs in these proceedings. Rule

408 focuses on the proposed use of statements, which were made

during settlement negotiations, and prohibits the use of

statements to prove or disprove the validity of a claim or to

impeach by a prior inconsistent statement.4

4 In fact, the limitation that would exclude factual statements, in contrast to concessions, from Rule 408 was included in a proposed version of the rule and was rejected. Fed. R. Evid. 408, Advisory Committee Notes; see also 2 McCormick on Evidence, § 266 8th ed. (2020).

9 Tiger also argues that statements made during settlement

negotiations are admissible to prove the intent of the parties

and to prove the terms of an agreement. In support, however,

Tiger cites Catullo v. Metzner, 834 F.2d 1075, 1078-79 (1st Cir.

1987). In Catullo, the plaintiff’s claim was breach of the

parties’ settlement agreement. Id. at 1078. The court held,

not surprisingly, that Rule 408 does not apply when the claim is

breach of the settlement agreement. Id. at 1079. This case

does not involve a claim of breach of a settlement agreement.

For purposes of summary judgment, Tiger uses Klotz’s

statement in the letter, attributed to Behlau, to show that the

parties amended the agreement. As such, Tiger uses the

statement to impeach Behlau’s evidence that the agreement was

not amended and to show that the statute of limitations bars the

claim. That is not a permissible use under Rule 408.

Therefore, Klotz’s statement is not admissible under Rule 408.

b. Admission

Tiger argues, nevertheless, that Klotz’s statement is an

admission by Behlau that the amended agreement is the operative

version of the agreement. Tiger contends that the statement is

admissible as an admission by a party opponent under Federal

Rule of Evidence 801(d)(2). Tiger also argues that Behlau is

precluded from contradicting Klotz’s statement.

10 With respect to admissibility, the hearsay rule broadly

excludes out-of-court statements offered to prove their truth.

Fed. R. Evid. 801(c). An exception to the hearsay rule exists

for a statement made by an opposing party, in certain

circumstances, when the statement is offered against that party.

Fed. R. Evid. 801(d)(2). There is no argument in this case,

however, that Klotz’s statement is hearsay, and there is no

effort to exclude the statement on that basis. Therefore, the

exception to the hearsay rule is inapplicable here.

Even if the Klotz’s statement were admissible, it would not

have the evidentiary value that Tiger asserts.5 Broadly

speaking, counsel’s statements made on behalf of a client may be

admissions and introduced to support a motion for summary

judgment. See Cerqueira v. Cerqueira, 828 F.2d 863, 865 (1st

Cir. 1987) (statement by party’s counsel conceding facts in

brief opposing summary judgment deemed admission). Party

admissions, however, have different probative value. Keller v.

United States, 58 F.3d 1194, 1198 n.8 (7th Cir. 1995); 2

McCormick on Evidence § 254. While judicial admissions are

conclusive, ordinary admissions can be contradicted by other

5 As stated above, the statement is not admissible under Rule 408. Rule 801(d)(2) does not make the statement admissible. It is not clear whether Tiger argues that the statement, as an admission, is nevertheless admissible based on another theory. To the extent Tiger makes that argument, it is not sufficiently developed to be addressed.

11 evidence. United States v. Raphelson, 802 F.2d 588, 592 (1st

Cir. 1986).

A judicial admission is a concession or statement made in a

pleading, a filing in that case, or a stipulation by a party or

counsel as part of the case, which is conclusive in that

proceeding and has the effect of withdrawing the admitted fact

from contention. Martinez v. Bally’s Louisiana, Inc., 244 F.3d

474, 476 (5th Cir. 2001); see also Standard Fire Ins. Co. v.

Knowles, 568 U.S. 588, 592-93 (2013); Lima v. Holder, 758 F.3d

72, 79 (1st Cir. 2014). An ordinary admission is a statement or

assertion that has been made for another purpose and is

introduced as evidence of a fact. Martinez, 244 F.3d at 476.

An ordinary admission may be explained or controverted by the

party who made it.6 Id. at 477.

As provided above, Klotz’s statement about the amended

agreement is not admissible under Rule 408(a). Even if the

statement were admissible, it would be an ordinary admission

that the amended agreement was the operable agreement. Behlau

6 Tiger mistakenly argues that Behlau cannot use his affidavit to explain Klotz’s statement. The rule cited, however, applies when a party attempts to contradict clear and unambiguous deposition testimony with a subsequent affidavit for purposes of opposing summary judgment. See Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 26 (1st Cir. 2002). That rule does not apply here.

12 is entitled to contradict the statement with evidence to the

contrary.

2. Evidence of Amendment of Agreement

“A valid, enforceable contract requires offer, acceptance,

consideration, and a meeting of the minds.” Durgin v. Pillsbury

Lake Water Dist., 153 N.H. 818, 821 (2006). A meeting of the

minds occurs only when the parties have the same understanding

of the contract terms and manifest an intent to be bound by the

contract. Id. Assent to a contract cannot be subjective or

merely mental assent without manifestation, and instead the

parties must establish that they agreed to be bound by writing

or conduct. Id.

Behlau sent Butler the proposed amended agreement in

December of 2012, after their meeting in October of 2012.

Butler did not sign the proposed agreement. He also did not

perform under the terms of the proposed amended agreement to

show, by conduct, that he agreed to its terms. For example,

Butler continued to ask Behlau to accept equity in the company

in lieu of payment and did not pay back the loan in March of

2013 when filming began.

Therefore, the evidence does not show that the April 2012

agreement was amended.

13 C. Timely

Tiger has not shown that the loan agreement was breached

more than three years before Behlau brought suit. Therefore,

the claim is not barred by the applicable statute of

Conclusion

For the foregoing reason, Tiger’s motion for summary

judgment (document no. 16) is denied.

As the motion for summary judgment is resolved against

Tiger, the parties are encouraged to use their best efforts to

resolve this case before the court and the parties expend the

considerable time and effort that will be necessary for further

litigation.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge March 16, 2021

cc: Counsel of record.