637 A.2d 906 (N.H. 1994), 92-355, Phillips v. Verax Corp.

Docket Nº:92-355.
Citation:637 A.2d 906, 138 N.H. 240
Opinion Judge:THAYER, J.
Party Name:Philip G. PHILLIPS v. VERAX CORPORATION and another.
Attorney:Brooks, McNally, Whittington, Platto & Vitt, Hanover (W.E. Whittington IV and Douglas S. Moore on the brief, and Mr. Whittington orally), for plaintiff., Sulloway & Hollis, Concord (Edward M. Kaplan and another on the brief, and Mr. Kaplan orally), for defendants. Brooks, McNally, Whittington, P...
Judge Panel:All concurred.
Case Date:March 03, 1994
Court:Supreme Court of New Hampshire

Page 906

637 A.2d 906 (N.H. 1994)

138 N.H. 240




No. 92-355.

Supreme Court of New Hampshire.

March 3, 1994

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[Copyrighted Material Omitted]

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[138 N.H. 241] Brooks, McNally, Whittington, Platto & Vitt, Hanover (W.E. Whittington IV and Douglas S. Moore on the brief, and Mr. Whittington orally), for plaintiff.

Sulloway & Hollis, Concord (Edward M. Kaplan and another on the brief, and Mr. Kaplan orally), for defendants.

THAYER, Justice.

The defendants, Peter L. Christie, Robert C. Dean, Jr., and Verax Corporation, appeal a jury verdict in this contract and tort action arising out of their employment relationship with the plaintiff, Philip G. Phillips. The plaintiff cross-appeals the trial court's entry of judgment. We affirm.

Following a trial in the Superior Court (Smith, J.), the jury returned verdicts for the plaintiff totalling $534,600, which the trial [138 N.H. 242] court subsequently entered at $200,000. The defendants appeal, alleging the following: (1) the trial court erred in denying defendant Verax Corporation's motion for summary judgment because (a) defendants Dean and Christie lacked authority to act on behalf of Verax corporation, (b) the plaintiff presented no evidence that the parties actually had an employment agreement, and (c) the statute of frauds and a lack of detrimental reliance or consideration barred recovery on the alleged contract; (2) the court erred in denying the defendants' motion for judgment notwithstanding the verdict because the plaintiff did not rely to his detriment on the defendants' allegedly fraudulent misrepresentations and offered no proof of reliance damages; and (3) the court abused its discretion by barring the testimony of a defense witness unless he submitted to a discovery deposition twenty-four hours before testifying. The plaintiff cross-appeals the trial court's entry of judgment for $200,000, rather than for the $534,600 sum total of the jury's awards, arguing that each award was separate and supported by independent evidence.

The relevant facts are as follows. Defendant Verax Corporation (Verax) was formed in 1979 and, during the time span relevant to this case, it patented a pharmaceutical manufacturing process. As this process had not yet been commercialized, Verax frequently sought infusions of capital to support its operations. In early 1986, Verax's management conducted negotiations with a private venture capital group for a substantial capital investment in exchange for the issuance of sufficient shares to give the new investors majority control of Verax. On April 30, 1986, this $5.4 million transaction was finalized and closed. Throughout the relevant time period, defendant Dean served as chairman of the board of Verax, and defendant Christie was president.

The plaintiff joined Verax in 1983, rising through the scientific ranks to become head of the science department and a member of the senior management team. According to the plaintiff, defendants Dean and Christie made a variety of agreements with the plaintiff, in essence committing to negotiate on the plaintiff's behalf with the venture capital group in order to provide a substantial equity package for the plaintiff as part of the anticipated deal. In March 1986, however, the plaintiff learned from defendant Christie that he had not been fully included in the equity participation deal. After the April 30th closing, the plaintiff informed defendant Dean that he had retained counsel to assist him in obtaining a fair equity package. The plaintiff left Verax in May 1986 under disputed

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circumstances that are not relevant to the issues before us in this appeal.

[138 N.H. 243] The plaintiff then initiated this action, originally alleging breach of contract and misrepresentation against defendant Verax, later amending his complaint to include counts of misrepresentation against all three defendants, breach of fiduciary duty against defendants Dean and Christie, and promissory estoppel against defendant Verax. Defendant Verax sought summary judgment on both counts of the original complaint. The Superior Court (Morrill, J.) denied the motion in September 1989.

Prior to trial, the plaintiff moved in limine to bar the testimony of a potential witness for Verax, Sheridan Snyder, to which the defendants objected. In his final pretrial order, the Trial Judge (Smith, J.) granted the motion. The defendants immediately moved for reconsideration. On reconsideration, the trial court ruled that Snyder could testify so long as he appeared for a deposition at least twenty-four hours in advance of his trial testimony. The court agreed to suspend the trial for those twenty-four hours to allow the deposition to be transcribed. The defendants were unable to produce Snyder for a deposition, and Snyder was not permitted to testify.

In November 1991, the jury returned verdicts of $200,000 on the misrepresentation count against Dean, $80,000 on the breach of...

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