Clipper Affiliates, Inc. v. Checovich

638 A.2d 791, 138 N.H. 271, 1994 N.H. LEXIS 18
CourtSupreme Court of New Hampshire
DecidedMarch 15, 1994
DocketNo. 92-129
StatusPublished
Cited by47 cases

This text of 638 A.2d 791 (Clipper Affiliates, Inc. v. Checovich) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clipper Affiliates, Inc. v. Checovich, 638 A.2d 791, 138 N.H. 271, 1994 N.H. LEXIS 18 (N.H. 1994).

Opinion

Batchelder, J.

This is an appeal by the plaintiff, Clipper Affiliates, Inc. (Clipper), from the decision of the Superior Court {Dickson, J.) granting the defendant’s, Samuel L. Checovich, motion to dismiss. We affirm in part, reverse in part, and remand.

Clipper, through its affiliated companies, operated various types of living facilities for elderly persons. Checovich was employed by Clipper from early 1984 through June 30, 1988, managing its financial operations. On January 8, 1988, Clipper’s president, William E. Gilmore, Jr., discharged Checovich. Pursuant to the terms of the discharge Checovich agreed to remain employed until June 30,1988. As compensation for remaining with the company and helping to train his successor, Checovich was given a $20,000 loan, to be repaid by returning to Clipper two $10,000 bonuses for satisfactory work performance in March and June. Although Clipper paid the March bonus and Checovich applied it to repay one-half of the loan, Checovich never received the anticipated $10,000 in June. Consequently, Clipper alleges that $10,000 of the loan remains outstanding.

Checovich currently operates Huntington Common, a retirement community in Kennebunk, Maine, similar to those run by Clipper. His partner in the venture is Douglas Stockbridge, Gilmore’s nephew, also a former Clipper employee.

Gilmore, disgruntled because Checovich, three days after his termination, provided Gilmore’s then estranged wife, Nancy, with corporate financial information for use in her divorce proceedings, sued Checovich in the name of the company for breach of contract and breach of employment/fiduciary duties, (’hecovich, subscribing to the view that the best defense is a good offense, counterclaimed, alleging abuse of process, intentional interference with advantageous business relations, and breach of contract for nonpayment of wages for his final two weeks employment.

At the jury-waived trial, Clipper attempted to prove that Checovich, Stockbridge, and the intervenor, Kathleen Sternenberg, worked together in the development of Huntington Common during the term of Checovich’s employment with Clipper. It also alleged that the disclosure to Nancy Gilmore, even though done after Checovich’s employment with Clipper was terminated, breached both Checovich’s employment contract and his fiduciary duty to the company. At the close of Clipper’s evidence, Checovich moved to dismiss, arguing that Clipper had failed to meet its burden of proof. The [274]*274trial court granted Checovich’s motion, heard evidence on his counterclaim, and ruled for him on all three counts. Clipper’s motion to set aside the verdict on the counterclaim was denied. This appeal followed. Clipper concedes that the verdict for Checovich on count III of his counterclaim, seeking payment for hisJinalJam weeks of employment, was proper, but appeals the ruling for Checovich on the other two counts of his counterclaim. Clipper also argues that the trial court erred: (1) in ruling that Checovich'breached'neither his employment contract nor his fiduciary duty to Clipper^). nTawarding a $10,000 bonus to Checovich; (3) in certain evidentiary rulings; (4) in failing to allocate the burden of proof to Checovich on his counterclaim; and (5) in awarding damages, fees, and costs.

The standard of review for a motion to dismiss at the close of the plaintiff’s case in a jury-waived trial simply stated is that we will not set aside the trial court’s findings of fact unless they are clearly erroneous and will not reverse the dismissal unless it is inconsistent with the findings or contrary to law. Renovest Co. v. Hodges Development Corp., 135 N.H. 72, 78, 600 A.2d 448, 452 (1991).

Clipper first argues that Checovich’s disclosure of confidential corporate information to Nancy Gilmore during the divorce proceedings breached the employment contract and his fiduciary duty to his corporate employer. It does not dispute that the documents lawfully came into Checovich’s hands while he was in charge of Clipper’s financial operations. Nor does it disagree that the employment contract had expired by the time the disclosure was made. Further, Gilmore testified that he ultimately provided the information to his wife’s attorney during discovery in the divorce proceeding. Clipper nevertheless pursued this claim.

Clipper’s argument involves both a contract and a tort cause of action. In an action for breach of contract, “[d]amages are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty.” RESTATEMENT (SECOND) OF Contracts § 352 (1981) (emphasis added); see Parem Contracting Corp. v. Welch Const. Co., 128 N.H. 254, 259, 512 A.2d 1104, 1107 (1986). In tort, “[o]ne to whom another has tortiously caused harm is entitled to compensatory damages for the harm if, but only if, he establishes by proof the extent of the harm and the amount of money representing adequate compensation with as much certainty as the nature of the tort and the circumstances permit.” Restatement (Second) of Torts § 912 (1982) (emphasis added); see Emery v. Caledonia Sand and Gravel Co., 117 N.H. 441, 447, 374 A.2d 929, [275]*275933 (1977). In this case, more than reasonable certainty of damages was lacking. First, there was no evidence that the disclosure harmed Clipper, the corporate plaintiff, as opposed to Gilmore individually. Second, Clipper presented no evidence of any harm whatsoever. Indeed, at oral argument Clipper conceded that it suffered no financial damage and that it was “not even sure that Mr. Gilmore would say that he had been hurt.” Consequently, Clipper failed to meet its burden of proof on this issue which, in any event, comes to nothing.

Clipper next argues that the trial court erred in awarding Checovich $10,000 for the unpaid June bonus. The trial court found justification for the payment of the bonus. Because our review of the record supports this finding, Checovich was entitled to the June bonus. See Renovest, 135 N.H. at 78, 600 A.2d at 452.

Clipper, in a broad stroke, next contends that the trial court “demonstrat[ed] a lack of judicial neutrality” in its evidentiary rulings. Evidentiary rulings are within the sound discretion of the trial court. Johnston v. Lynch, 133 N.H. 79, 89, 574 A.2d 934, 940 (1990). Consequently, this court will not disturb the trial court’s rulings unless they are clearly untenable or unreasonable to the prejudice of the complaining party’s case. Great Lakes Aircraft Co. v. City of Claremont, 135 N.H. 270, 295, 608 A.2d 840, 856 (1992).

Without listing the numerous objections, we summarize them as challenging the rulings of the trial court in excluding its proffered evidence and admitting that of Checovich. Our canvass of the record discloses no abuse of discretion.

Clipper’s argument that the trial court erred in granting Checovich’s motion to dismiss lacks merit. In support of its contention, it restates its previous evidentiary arguments.

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Bluebook (online)
638 A.2d 791, 138 N.H. 271, 1994 N.H. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clipper-affiliates-inc-v-checovich-nh-1994.