HyTechPro, Inc. v. Sylvain Analytics, Inc., 102116 NHSUP, 226-2012-CV-871

Docket Nº:226-2012-CV-871
Opinion Judge:Richard B. McNamara, Presiding Justice.
Party Name:HyTechPro, Inc. v. Sylvain Analytics, Inc.
Case Date:October 21, 2016
Court:Superior Court of New Hampshire

HyTechPro, Inc.


Sylvain Analytics, Inc.

No. 226-2012-CV-871

Superior Court of New Hampshire, Merrimack

October 21, 2016



Richard B. McNamara, Presiding Justice.

In 2012, HyTechPro, Inc. ("HyTech") filed an action alleging breach of contract against Sylvain Analytics, Inc. ("Sylvain"). Eventually, a default judgment was entered against Sylvain in the amount of $271, 597 plus costs and interest. Sylvain has now filed a Motion to Bring Forward and a Verified Motion to Set Aside Final Judgment Order, alleging in substance that the affidavit submitted in support of the default judgment against it was fraudulent. For the reasons stated in this Order, the Court orders that an evidentiary hearing be held.

At the hearing, Sylvain will bear the burden of proving fraud by clear and convincing evidence. It will also need to establish that it made reasonable efforts to ascertain the fraud, and that it acted diligently after it learned of the fraud. Its claim of fraud is limited to the claim that HyTech submitted fraudulent invoices to the Court in connection with its Affidavit of Damages, filed in support of its Motion for Judgment. HyTech may, if it chooses to do so, present evidence on whether or not its reliance interests would be affected by a determination in favor of Sylvain. The Court recognizes that discovery may be necessary in order for the parties to properly present evidence on their claims. Accordingly, the Court orders that the parties shall meet and confer and prepare a proposed order for discovery for the Court's approval. If the parties cannot agree on dates for discovery, then a hearing shall be held. The parties shall contact the Clerk, and arrange a mutually convenient date for a hearing in advance of preparing a scheduling order for discovery as the discovery necessary will obviously be a significant factor in determining when a hearing can be held


At the time litigation was instituted in 2012, neither party was located in New Hampshire; HyTech was operating in Washington, D.C. and Sylvain was operating in Reston, Virginia. However, the contract between the parties provided that the parties consented to jurisdiction in New Hampshire. The file reflects that Sylvain accepted service of the Complaint in a pleading dated December 27, 2012 signed by Sylvain's attorney, Geralda Jean, Esq., who listed herself as general counsel for Sylvain Analytics, Inc., 12007 Sunrise Valley Drive, Suite #105 Reston, VA 20191. An appearance was filed on behalf of Sylvain on January 24, 2013. The parties agreed to transfer the case to the Business and Commercial Dispute Docket. Litigation proceeded through the pleading stage and the case was mediated in May 2013.

Sylvain's counsel filed a Motion to Withdraw dated October 3, 2013, and represented in her motion that: Good cause exists for this application [to withdraw] as Sylvain has failed to maintain communications with Movants, and as a result Movant has been unable to adequately represent Sylvain in this action, including providing timely and adequate responses to outstanding discovery. The failure of communication also violates the fee agreement between Movant and Sylvain.

(Mot. for Leave to Withdraw as Counsel ¶ 1.)

The Court granted the Motion for Leave to Withdraw. Sylvain was defaulted on December 2, 2013. The Court's file reflects that on December 4, 2013, a copy of the Court's Order granting the default was mailed to the parties, and to Ray Sylvain, the principal of Sylvain. The December 4, 2013 Notice of Default stated that: Before final judgment will be entered, the party seeking judgment must certify that it has mailed to the last known address of the defaulting party copies of the above documents and that it has notified the defaulting party that the entry of final judgment or decree is being sought.

A hearing as to final judgment shall be scheduled upon the request of any party. Otherwise, the Court may enter final judgment based on the pleadings submitted or may schedule a hearing at its discretion.

On February 3, 2014, HyTech filed a Motion for Entry of Final Judgment and Award of Damages including an affidavit setting forth its claims of damages. The certificate of service recited that a copy was sent to Sylvain at 12007 Sunrise Valley Drive, Suite #105 Reston, Virginia 20191, the address listed on the appearance filed by its corporate counsel, via first class mail. No hearing was requested by Sylvain. A final judgment order was entered on February 19, 2014, in the amount of $271, 597 plus statutory interest and $205 in costs. On or about February 16, 2016, HyTech filed a certified copy of the judgment in Virginia and then sought to collect on its judgment.

Sylvain now moves to set aside the judgment obtained against it. It has filed two pleadings. First, it has filed a Motion to Bring Forward in which it recites that: 6. At the time the case was filed and continuing into 2013, [Sylvain's] business was hit hard by the U.S. Government's budget sequestration as a substantial portion of its business came from Department of Defense contracts. As a result, [Sylvain] did not have the resources to continue the litigation and the underlying counsel withdrew. The company offices were already closed and all employees had been released.

7.Because [Sylvain] was unable to obtain new counsel, a default was entered against it on December 2, 2013. Although Ray Sylvain, the principal of [Sylvain], provided a forwarding address to the U.S. Post Office when Sylvain vacated its leased premises, he did not receive any pleadings from the New Hampshire court after the undersigned counsel withdrew. Accordingly, he was unaware that HyTech was moving forward with its efforts to obtain a fraudulent judgment.

Sylvain also asserts in its pleading that "it is likely that the USPS forward mailing service had expired by this time as the service of first class mail is limited to one year. (Mot. to Bring Forward ¶ 7, n.2.)

The only relief requested in the Motion to Bring Forward is that the Court "bring this matter forward and grant such other and further relief as may be just." However, in its Verified Motion to Set Aside Final Judgment Order, filed the same date, Sylvain expands its argument as to why the judgment rendered against it in 2014 should be set aside. Essentially, it alleges that the affidavit of damages, filed with the Verified Motion, was fraudulent. In substance, Sylvain alleges that HyTech overbilled it by including time entries for an individual named Manoj Jain ("Jain") when Jain did not actually provide services for Sylvain: 24.During the period of April 2011 through July 2012, HyTechPro invoiced [Sylvain] for Mr. Jain's services at the full time agreed rate of $3, 900.00 per month (with the exception of one invoice) totaling $61, 912.50.

25. However, upon information and belief, Mr. Jain ceased performing services for [Sylvain] in approximately April 2011. Instead, Mr. Jain was reassigned by HyTech and Gupta to other customers, including HomeConnections, based in the United Kingdom.

26.Fearful of losing [Sylvain's] business if it discovered that Mr. Jain was no longer part of the Sylvain Team, Mr. Jain was directed by HyTech and Gupta to continue submitting the [Sylvain] timesheets even though he was no longer performing services for [Sylvain] and HyTech continued invoicing [Sylvain] for Mr. Jain's services. Examples of the falsified timesheets are attached hereto as Exhibit B.

(Verified Mot. to Set Aside Final Judgment Order ¶¶ 24-26.)

Sylvain has provided an affidavit from Jain as part of its Motion in which he verifies the claims made by Sylvain and asserts that after April 2011 he was assigned to a new client called HomeConnections based in the United Kingdom but was directed by HyTech to continue submitting timesheets to Sylvain even though he was no longer performing services for it. (Jain Aff. ¶ 8, June 9, 2016.) Sylvain also alleges that HyTech had waived any late fees by course of performance and that therefore its claim of late fees is fraudulent.

The Plaintiff has objected to the Motion to Bring Forward. It argues that Sylvain's opportunity to challenge the final judgment entered against it has long past: Although couched as an effort to set aside a "fraudulent judgment, " Sylvain's motion is actually not a challenge to the way HyTech obtained the judgment. Rather, it is a challenge to HyTech's calculation of damages and an attempt to re-litigate the merits of the case two years after a judgment was entered. Sylvain had ample opportunity to litigate the issues raised in its present motion before this Court entered final judgment against it, and had opportunities to challenge or appeal the judgment after it entered [it]. It failed to do so in both instances.

(Pl.'s Obj. to Def.'s Mot. to Bring Forward 1, 1.)


In its Verified Motion to Set Aside Judgment, Sylvain argues that the judgment was procured by fraud, and the Court has discretion to set it aside. (Verified Mot. to Set Aside Final Judgment Order ¶ 39, citing Aranson v. Schroeder, 140 N.H. 359, 372 (1995)). In its Reply, Sylvain references RSA 526:4, and seems to argue that its request is in fact, a Motion for New Trial which may be brought within three years of the verdict. (Reply to Pl.'s Obj. to Def.'s Mot. to Bring Forward 1, 2.) Sylvain appears to be making two distinct arguments: first, that it did not have adequate notice of the proceedings in New Hampshire; and second that the proceedings themselves were tainted by fraud. While the former claim has little merit, the Court believes that an evidentiary hearing is necessary to determine the validity of Sylvain's second claim.


The pleadings reflect no...

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