Friday, March 07, 2008

Board Files Answer to AoA's Petition

I'm front-paging this anonymous comment from an older thread.

The Board of Trustees has filed its answer to the alumni lawsuit. [On Feb. 29]

Notable: the Board is finally asserting the Statute of Frauds as a defense.

RSA 506:2 says "No action shall be brought to charge an executor or administrator upon a special promise to answer damages out of his own estate or to charge any person upon a special promise to answer for the debt, default or miscarriage of another, or upon any agreement made in consideration of marriage or that is not to be performed within one year from the time of making it, unless such promise or agreement, or some note or memorandum thereof, is in writing and signed by the party to be charged or by some person authorized by him."

The plaintiff has written memoranda referring to the nomination of eight trustees. There is no writing that refers to twelve trustees or half of the elected trustees.

UPDATE: I've put the full language of the statute into the post, per the first comment.

P.S. There's some debate over whether the abridged language of the statute made it easier to read. Since I'm not a lawyer, whenever there is a disagreement I will err on the side of the unabridged text.

20 comments:

Anonymous said...

The originator of the post repeated above was clearly trying to change its applicability by the selective deletion of text.

RSA 506:2 really says "No action shall be brought to charge an executor or administrator upon a special promise to answer damages out of his own estate or to charge any person upon a special promise to answer for the debt, default or miscarriage of another, or upon any agreement made in consideration of marriage or that is not to be performed within one year from the time of making it, unless such promise or agreement, or some note or memorandum thereof, is in writing and signed by the party to be charged or by some person authorized by him."

Anonymous said...

The clause may or may not be relevant. Is the Association only asking that the agreement be honored, or are they asking for damages in the form of a pound of flesh from administrator Wright's hide?

Anonymous said...

This comment is simply a misunderstanding of the purpose of the statute of frauds. The sole purpose of the statute of frauds is to help determine whether any sort of contract could possibly exist. It is irrelevant to questions of interpretation, such as whether the contract stated "five" versus "half." That is a question for which parole evidence is admissible. It is irrelevant to questions of formation, which requires offer and acceptance, and a consideration.

I assume that the person who posted this didn't go to law school did he/she? If so, please tell me that this person is not practicing law somewhere!

Here's section 131 of the Restatement (2d) of Contracts:

§ 131. General Requisites Of A Memorandum

Unless additional requirements are prescribed by the particular statute, a contract within the Statute of Frauds is enforceable if it is evidenced by any writing, signed by or on behalf of the party to be charged, which

(a) reasonably identifies the subject matter of the contract,

(b) is sufficient to indicate that a contract with respect thereto has been made between the parties or offered by the signer to the other party, and

(c) states with reasonable certainty the essential terms of the unperformed promises in the contract.

Anonymous said...

Can someone with expertise please cut through all the legal chatter and advise if there is anything new of importance in the new filing, in lay terms.

Anonymous said...

In lay terms, there's nothing particularly noteworthy about the answer--it's just the next step in the case and means that it's still moving forward. If anyone cares, here's why.

Any civil case starts with what's usually called a "complaint"--or, as the NH court calls it, a "petition for relief."

In the petition for relief, you set out--usually in fairly general terms--what happened to you, who you're suing, what you want from the court (and the defendant) and what theory entitles you to relief.
The petition for relief in this case is at http://www.dartmouthalum.org/assets/uploads/2007/10/petition.pdf

Once the AOA successfully served the College with the petition for relief, the College had 2 options: (1) file a motion to dismiss the petition altogether, or (2) file an "answer."

You may recall the College chose (1), and filed a motion to dismiss saying that the petition was facially defective and that case should be dismissed immediately. The College lost that motion, so that means that it had to file an answer.

An answer is a pretty bare-bones document, in which the defendant (1) either admits or denies each of the numbered factual allegations in the petition, (2) asserts any affirmative defenses it has, and (3) asserts any counterclaims it wants to raise. Basically it's just the next step in the litigation process. Part of the point of an answer is to clarify and narrow down what's in dispute and what isn't.

(1) is pretty standard. The College has denied nearly every allegation in the petition. The petition has a lot of advocacy in it instead of bare-bones factual allegations, so the College's response is unsurprising.

(2) is also pretty standard. Answers usually include every conceivable non-frivolous affirmative defense, and the affirmative defenses get whittled down as the facts come out and the case moves forward. For example, the first affirmative defense has already been rejected by the court, but it's still in there, perhaps for the purpose of preserving the issue for appeal. Statute of frauds and failure of consideration are standard contract defenses and probably show up in most answers in contract cases. Lack of standing and failure to join a necessary party are common defenses in litigation generally, and are at least facially plausible here, which is all that's necessary at this point. This doesn't tell us much about the College's litigation strategy.

(3) Also not surprisingly, the College asserted no counterclaims. If it had asserted a counterclaim of some kind, that would be noteworthy.

So, as I said at the outset, the short version of this comment is that the answer isn't very significant. It just means that the case is continuing to move along.

The ink on my JD hasn't been dry for very many years, so if someone with a bit more practice experience disagrees, please correct me or add your own 2 cents.

Anonymous said...

Thank You.

Pretty good for a self-acknowledged rookie J.D., who has not lost an ability to communicate to non-lawyers. We of the latter type appreciate the insights.

Anonymous said...

There was some discussion here weeks ago regarding the then-absence of a statute of frauds defense, and one commentator suggested that since the defense had not been raised in the motion to dismiss, it was waived.

That's clearly not the case, and the Board has this defense available.

The statute of frauds is not meant to determine whether a contract exists, as "rookie" says; it determines whether an unwritten contract is enforceable. People make real, existing contracts all the time that, if litigated, would not be enforced because they were not written down sufficiently.

If the court finds the statute of frauds prevents enforcement of this contract, then there will be no need for parol evidence explaining the terms of the contract.

A.S., there was no need to substitute the full version of the statute. Anon. 11:07 seems unaware that the statute of frauds requires a writing for a variety of types of contracts, and only one of those, an agreement that is "not to be performed within one year." The "selective deletion" of references to marriage contracts or executors of the estates of dead people does not change the applicability of the statute of frauds in this case. It makes the statute clearer.

Anonymous said...

Anonymous 3:00, if the 1891 resolution is a writing signed by the Board that identifies the subject of the contract, do you think it indicates that a contract has been made and "states with reasonable certainty the essential terms of the unperformed promises in the contract"?

I don't see anything about promises to raise money or refrain from filing a lawsuit, which are the main elements of consideration the plaintiff has come up with so far.

(Needless to say, nominating trustees is not consideration, it is the exercise of the very right granted in the contract.)

I don't see any essential terms of the unperformed promises of the plaintiff here:

1. I. Resolved, that the graduates of the College, the Thayer School and the Chandler School, of at least five years standing, may nominate a suitable person for election to each of the five trusteeships, next becoming vacant on the board of trustees of the College (except those held by the Governor and President) and may so nominate for his successors in such trusteeship;

2. Resolved, that whenever any such vacancy shall occur in such trusteeship or the succession thereto, the trustees will take no action to fill the same until the expiration of three months after notice to the Secretary of the Alumni of the occurrence of such vacancy, unless a nomination therefor shall be sooner presented by the Alumni to said Trustees.

3. Resolved, that this plan of nomination shall be taken to supersede the plan heretofore adopted in 1876.


The Association's contemporary minutes, which are not a memorandum signed by the party to be charged, also omit any mention of consideration.

anon. 3:45 said...

3:45 should say "only one of those, an agreement that is 'not to be performed within one year,' is applicable to the 1891 Agreement."

Anonymous said...

The Judge has already ruled on this.

I'm surprised the Association EC is not clanging the churchbells.

The Judge was required to rule on the law re: the contract (but not the facts), and given the admitted facts, stated that there was a good reason to believe a contract existed (what its terms where might then be debated).

His decision was not merely a claim that the contract might have a shred of hope to exist as with a normal denial of a motion to dismiss, but was considering the law and admitted facts, and thus said more.

The Judge's own words should be part of any reelection marketing campaign for the Petition association slate.

The DAMagazine tried to fib on these points.

Perhaps its time to submit an Association Motion for Summary Judgment, at least on an obvious point or two, to get a decision in time that helps with the election.

Anonymous said...

Anon. 11:46, would the EC clang the churchbells in alarm, or in celebration?

The judge's ruling was not based on "the admitted facts." There were no admitted facts, only allegations.

The judge cannot be read to say there is a good reason to believe a contract existed, although his language does go overboard in implying that he believes that. The very most the order can say (whatever words the judge used) is that the plaintiff has made out a claim upon which relief may be granted. I.e. the claim survived.

Discussions of what the contract terms might be will not occur unless the plaintiff first proves at trial that there was a contract. The plaintiff has had no opportunity to prove the existence of a contract yet.

How did the DAM try to "fib" on this? Are you referring to the obnoxiously simpering propaganda advertisement placed by the Gang of Six?

Anonymous said...

I don't know, but I think having fewer words makes anything easier to read:

"No action shall be brought ... upon any agreement ... that is not to be performed within one year from the time of making it, unless such promise or agreement, or some note or memorandum thereof, is in writing and signed by the party to be charged or by some person authorized by him."

N.H. R.S.A. 506:2.

This simplification removes references to the other actions that also require writings but have nothing to do with the 1891 Agreement:

1. to charge an executor or administrator upon a special promise to answer damages out of his own estate

2. to charge any person upon a special promise to answer for the debt, default or miscarriage of another

3. upon any agreement made in consideration of marriage

Anonymous said...

"No Action" OF ANY KIND AT ALL

is much more sweeping than

"No action to charge an executor to answer damages out of his own estate."

The use of ellipses did not only simplify... it changed the content and thus falsely broadened the applicability of this clause. Clearly the intent of the original poster in order to make his case, using words selectively taken from an inappropriate section in the Statutes of Fraud.

Anonymous said...

Regarding Anon 12:43 above and interpreting what the judge said, the denial of the motion to dismiss was quoted over on the AoA blog, and apparently states:

"The Court further finds and rules that the Board had the requisite authority to enter into the Agreement, and that the Agreement did not represent an improper delegation of the Board's duties....The Court finds that it would be improper to hold as a matter of law that the Board's action in 1891 was illegitimate for lack of authority, when it has been ratified by the actions of both parties for 116 years thereafter." (pages 13 and 14 of the Order on the Motion to Dismiss).

Alumni can interpret for themselves what this means, and what it will mean as the case progresses.

Anonymous said...

Anonymous 9:55 is learning how to read a statute for the first time. New Hampshire's statute of frauds (plural) bars actions to enforce four kinds of unwritten promises in certain cases.

Those four kinds of promise are, in paraphrase, an executor's special promise to answer damages out of his own estate; a person's special promise to answer for the debt of another; an agreement made in consideration of marriage; and an agreement that is not to be performed within a year.

Only the last one is remotely related to the AoA lawsuit. It is proper to cut out the others when quoting the statute. It does not change the meaning of the statute in any way that is relevant to the AoA lawsuit.

The statute of frauds bars ALL ACTIONS to enforce an unwritten agreement that is not to be performed within a year. Does Anon. 9:55 dispute this? Or does he think there is a promise of marriage in this case somewhere?

Anonymous said...

Maybe the statue of frauds bars this, but not the words of the one section of the statue that was (fully) quoted. If this is where one-year performance was meant to be addressed, then NH needs some rewriting of its law. Perhaps another section of the statue provides the relevance the very original poster was hoping to apply.

Anonymous said...

RSA 506:2 is the relevant part of the statute of frauds. It bars actions on agreements not to be performed in a year, whether quoted in full with the relevant portion excerpted.

The statute of frauds, RSA 506:2, says no action shall be brought on any agreement that is not to be performed in a year unless it is in writing and signed by the party to be charged.

The other clauses within that statutory section, and the other sections within that chapter, deal with unrelated matters:

CHAPTER 506
PREVENTION OF FRAUDS AND PERJURIES
Section 506:1 Sale of Land.
Section 506:2 Special Promises, etc. – No action shall be brought to charge an executor or administrator upon a special promise to answer damages out of his own estate or to charge any person upon a special promise to answer for the debt, default or miscarriage of another, or upon any agreement made in consideration of marriage or that is not to be performed within one year from the time of making it, unless such promise or agreement, or some note or memorandum thereof, is in writing and signed by the party to be charged or by some person authorized by him.
Section 506:2-a Actions Against Persons Discharged as Bankrupt.
Section 506:3 Assignment of Wages.
Section 506:4 Record of Assignments.
Section 506:5 Powers of Attorney; Effect of Death of Principal.
Section 506:6 Powers of Attorney; Disability or Incompetence of Principal.
Section 506:7 Powers of Attorney; Limitations on the Agent.

Anonymous said...

Is Frank Gado gaming the system to keep the law suit alive? He got an official nomination to 2nd VP but backed out so he could accept a petition nomination to stand for election as an executive committee "member." Perhaps he expects to attract less notice in the lists that way.

Several other rogues have switched to the semi-official and secretly-organized petition "slate"." Now it is too late for anyone else to get a nomination, whether by the official committee or by petition. It is good to see that the anti-Dartmouth movement knows how to time their string-pulling.

Anonymous said...

The rules for submitting candidate petitions were published and available for any alumnus wishing to run. No string pulling or game playing there.

If one wants to attack Gado and other rogues, it should at least be done with some credible basis. Otherwise critics merely discredit themselves.

Anonymous said...

Anon 1:58, are you saying the rules allow officially-nominated candidates to switch sides and outsiders to manipulate the opposition slate after the official candidates have been determined? Why not tell us where this rule is?