WHS Homes, Inc. v. Traditional Living, Inc., 020419 NHSUP, 215-2012-CV-00037

Docket Nº:215-2012-CV-00037
Opinion Judge:Richard B. McNamara, Presiding Justice.
Party Name:WHS Homes, Inc. v. Traditional Living, Inc., et al
Case Date:February 04, 2019
Court:Superior Court of New Hampshire
 
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WHS Homes, Inc.

v.

Traditional Living, Inc., et al

No. 215-2012-CV-00037

Superior Court of New Hampshire, Merrimack

February 4, 2019

ORDER

Richard B. McNamara, Presiding Justice.

Judgment in the amount of $1, 964, 500 was entered against WHS Homes, Inc. ("WHS") in favor of Traditional Living, Inc., ("TLI") on March 28, 2018. WHS has filed a Motion to Reopen the Judgment, Stay Execution and Approve Periodic Payment Plan. TLI objects, and has filed a Motion to Re-Open Case, for Appointment of a Receiver and for Other Relief. For the reasons stated in this Order, the Motion to Reopen the Judgment, Stay Execution and Approve Periodic Payment Plan is DENIED. A hearing shall be held on TLI's request that a Receiver be appointed. In order to maintain the status quo until the pending motions are resolved, the Court orders that pending further order of this Court, the court orders that WHS shall (1) operate its business in the ordinary course, (2) use its cash in the ordinary course and not pay unusual compensation (dividends, salary, loans or other cash distributions) to its owner or members of his family (3) not encumber or permit anyone to encumber any of its assets including equipment and intellectual property, (4) not sell, transfer, or dispose of any production asset having a value in excess of $3000 or any of its intellectual property without first obtaining written permission of TLI; and notify TLI in writing within 5 days of becoming delinquent in the payment of any debt.

I

The judgment entered against WHS arises from a lawsuit which in turn arose from a 2011 Asset Purchase Agreement ("APA") between it and TLI. Essentially, WHS purchased the assets of TLI, a company that manufactured log homes. Among other terms of the APA, WHS agreed to assume $1.7 million of TLI's trade payables. The principal dispute between the parties was what constituted the trade payables under the APA. WHS argued that it fulfilled its liabilities under the APA by assuming approximately $ 2.2 million of TLI's liabilities, consisting of all of TLI's customer contracts and employee vacation time, and some of TLI's trade payables. WHS asserted that the APA permitted it to choose among the categories above at its discretion.

A four-day bench trial was held in October 2015. The trial principally involved TLI's allegation that WH S was responsible for paying $1.7 million in trade payables pursuant to the APA and WHS's allegation that TLI was liable to WHS for a number of missing assets that were not turned over at the closing. By Order dated January 15, 2016 the Court found that the parties intended that WHS pay the trade payables up to $1.7 million prior to deciding whether to assume any other liabilities. The Court found that WHS was liable to TLI in the amount of $1, 022, 997.99. The Court also determined that WHS is missing assets claim lacked merit. Pursuant to a provision in the APA that awarded attorney's fees to the prevailing party, after hearing the Court awarded TLI approximately $703, 000 in attorney's fees and approximately $35, 000 in costs.

On February 5, 2016, after WHS filed its notice of appeal, the parties filed a proposed stipulated order that in substance required WHS to operate its business in the ordinary course, and not use its cash to pay unusual compensation to his owner or members of the family, not encumber any of its assets and not sell transfer or dispose of a production asset having a value of more than $3000 or any of its intellectual property. The proposed order also required that TLI would be notified within 5...

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