HALIFAX-AMERICAN ENERGY COMPANY, LLC & a.
PROVIDER POWER, LLC & a.
Argued: June 1, 2017
Hinckley, Allen & Snyder, LLP, of Concord (Christopher
H.M. Carter and Daniel M. Deschenes on the brief, and Mr.
Carter orally), for the plaintiffs.
Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester
(Andru H. Volinsky and Talesha L. Saint-Marc on the brief,
and Mr. Volinsky orally), for the defendants.
plaintiffs are four companies with common owners and
operators: Halifax-American Energy Company, LLC; PNE Energy
Supply, LLC (PNE); Resident Power Natural Gas & Electric
Solutions, LLC (Resident Power); and Freedom Logistics, LLC
d/b/a Freedom Energy Logistics, LLC. Collectively, they are
referred to as the "Freedom Companies." The
defendants are three companies and their owners: Provider
Power, LLC; Electricity N.H., LLC d/b/a E.N.H. Power;
Electricity Maine, LLC; Emile Clavet; and Kevin Dean.
Collectively, they are referred to as the "Provider
Freedom Companies and the Provider Power Companies are
engaged in the same business - arranging for the supply of
electricity and natural gas to commercial and residential
customers in New Hampshire and other New England states. The
parties' current dispute concerns a Freedom Company
employee whom the defendants hired, without the
plaintiffs' knowledge, allegedly to misappropriate the
plaintiffs' confidential and proprietary information.
According to the plaintiffs, the defendants used the
information obtained from the employee to harm the
plaintiffs' business by improperly interfering with their
relationships with their customers and the employee.
seven-day jury trial in Superior Court (Anderson,
J.), the jury returned verdicts in the plaintiffs' favor
on many of their claims, including those for tortious
interference with customer contracts, tortious interference
with economic relations with customers, tortious interference
with the employee's contract, and misappropriation of
trade secrets. The jury awarded compensatory damages to the
plaintiffs on each of these claims, except the
misappropriation of trade secrets claim, and included in the
damages award $93, 000 for the attorney's fees incurred
by the plaintiffs in prior litigation against the employee
for his wrongful conduct. The jury's total damages award,
including the attorney's fees, was $556, 208.
Subsequently, the trial court awarded attorney's fees to
the plaintiffs under the New Hampshire Uniform Trade Secrets
Act (NHUTSA), see RSA ch. 350-B (2009).
appeal, the defendants challenge: (1) the jury's verdicts
on the plaintiffs' claims for tortious interference with
customer contracts and the employee's contract; (2) the
jury's award of damages for tortious interference with
customer contracts and tortious interference with economic
relations, and its inclusion in that award of the
attorney's fees incurred in the plaintiffs' prior
litigation against the employee; and (3) the trial
court's award of attorney's fees to the plaintiffs
under the NHUTSA. We affirm.
addressing the defendants' numerous appellate arguments,
we highlight the following principles. First, we decline to
review any argument that the defendants did not raise before
the trial court. See State v. Blackmer, 149 N.H. 47,
48 (2003). "The general rule in this jurisdiction is
that a contemporaneous and specific objection is required to
preserve an issue for appellate review." Id.
(quotation omitted). "This rule, which is based on
common sense and judicial economy, recognizes that trial
forums should have an opportunity to rule on issues and to
correct errors before they are presented to the appellate
court." Id. (quotation omitted). As the
appealing parties, it is the defendants' burden to
provide this court with a record demonstrating that they
raised their appeal arguments before the trial court. See
Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004).
Moreover, although the plain error rule allows us to consider
errors not brought to the attention of the trial court,
see Sup. Ct. R. 16-A, in this case, we exercise our
discretion to consider plain error only when the defendants
specifically argue under that rule.
we confine our review to only those issues that the
defendants have fully briefed. See Blackmer, 149
N.H. at 49. "[I]n the realm of appellate review, a mere
laundry list of complaints regarding adverse rulings by the
trial court, without developed legal argument, is
insufficient to warrant judicial review." Id.
we will not review any issue that the defendants address in
their brief, but did not raise in their notice of appeal.
See id. An argument that is not raised in a
party's notice of appeal is not preserved for appellate
review. Id. For example, although the defendants
purport to challenge the jury's verdict on the
plaintiffs' misappropriation of trade secrets claim, the
argument is not preserved for our review because the
defendants did not include that issue in their notice of
we will not address any issue that the defendants raised in
their notice of appeal, but did not brief. The defendants
raise 27 questions in their notice of appeal, but have
briefed far fewer. Any issue that the defendants raised in
their notice of appeal, but did not brief, is deemed waived.
See In re Estate of King, 149 N.H. 226, 230 (2003).
these principles in mind, we address only a fraction of the
defendants' arguments. We do not address other arguments
either because they were not preserved, were not sufficiently
developed for appellate review, were not raised in the
defendants' notice of appeal, or were raised in the
notice of appeal but not briefed.
The Defendants' Challenges to the Jury Verdicts
Tortious Interference with Customer Contracts
trial, the defendants moved for judgment notwithstanding the
verdict (JNOV) as to the plaintiffs' tortious
interference with certain of PNE's customer contracts on
the ground that the plaintiffs had failed to prove that those
contracts remained valid after February 2013. According to
the defendants, in February 2013, PNE "failed
financially because it was unable to maintain its required
financial sureties with ISO [New England], " which the
defendants assert, manages the "wholesale power
transmission market, sometimes referred to as 'the
grid.'" The defendants contend that, as a result,
ISO New England "suspended PNE's participation in
the power market and directed the host utility, " Public
Service of New Hampshire (PSNH), "to assume
responsibility" for the electricity used by PNE's
customers by February 20, 2013. The defendants state that, on
February 20, "all of PNE's customers were
transferred to PSNH for their electricity needs, and PNE
stopped buying electricity and re-selling the electricity to
its customers." The defendants concede that "PNE
was released from its suspension[ ] . . . in late March 2013,
" but contend that PNE "was not able to immediately
recover financially and was not back up and running until
June." The defendants argued that they were entitled to
JNOV with regard to PNE's contracts with the customers
that transferred to PSNH because the plaintiffs failed to
prove that PNE maintained contracts with those customers
after it was suspended.
trial court denied the defendants' motion, finding that
"there was sufficient evidence for the jury to find that
the [challenged] contracts continued even after the customers
were transferred to PSNH." For instance, the trial court
noted, the employee "testified that, on behalf of [the]
[p]laintiffs, he would maintain the relationships with
customers even after they were transferred to a utility
during periods of market volatility." The trial court
stated that the employee also testified that, as part of the
service that the plaintiffs provided to customers, the
employee "would keep the customers abreast of market
conditions and forecasts, so that when rates went down
customers could return to [the] [p]laintiffs for their
service." According to the employee, "this service
was part of the contractual relationship." The trial
court also determined that there was sufficient evidence from
which the jury could have found that the plaintiffs and their
customers "contemplated this sort of short-term
transfer." The defendants argue that the trial court
erred in so ruling.
motion for JNOV relates to the sufficiency of the evidence
and presents a question of law. Murray v. McNamara,
167 N.H. 474, 478 (2015). A party is entitled to JNOV only
when the sole reasonable inference that may be drawn from the
evidence, which must be viewed in the light most favorable to
the non-moving party, is so overwhelmingly in favor of the
moving party that no contrary verdict could stand.
Id. at 478-79. The court cannot weigh the evidence
or inquire into the credibility of the witnesses, and if the
evidence adduced at trial is conflicting, or if several
reasonable inferences may be drawn, the motion should be
denied. Id. at 479.
in the past we have stated that we will not overturn the
trial court's decision absent an unsustainable exercise
of discretion, id., in fact, because a motion for
JNOV presents a question of law, our review is de
novo, see Ellis v. Candia Trailers & Snow
Equip., 164 N.H. 457, 463 (2012) (explaining that
"[w]e review questions of law de novo").
upon our review of the record, we cannot conclude that the
trial court erred by denying the defendants' motion for
JNOV. As the trial court aptly observed, the evidence adduced
at trial was conflicting, and while the defendants'
evidence "may have cast doubt" on the
plaintiffs' evidence, it "did not prevent a
reasonable jury" from finding that "the contractual
relationships continued after the suspension."
defendants argue that they were entitled to JNOV with regard
to certain of Resident Power's customers because,
although Resident Power was not suspended, it "suffered
significant reputational damage because it was so closely
linked to PNE, which was suspended." Moreover, the
defendants assert, Resident Power's contracts with
certain customers provided for automatic termination of the
contract if a party ceases conducting business "in the
ordinary sense, " and, following PNE's suspension,
Resident Power ceased conducting business "in the
ordinary sense." According to the defendants,
"Resident Power effectively ceas[ed] to conduct business
in the ordinary sense" because it "could not
transfer the customers placed with PNE to a new supplier
without the customers' permission or without facing
denying the defendants' motion for JNOV, the trial court
determined that the phrase "to conduct business in the
ordinary sense" is ambiguous "as it could be
reasonably understood to mean either a significant disruption
in business, however fleeting in length, or the permanent
shutdown of operations." (Quotation omitted.) The trial
court concluded that, given the provision's ambiguity,
"the jury was entitled to decide [its] meaning and
the defendants do not argue otherwise, we assume without
deciding that the meaning of the provision was a fact
question for the jury to decide. Viewing the evidence in the
light most favorable to the plaintiffs, we cannot say that
the sole reasonable inference is that Resident Power ceased
to "conduct business in the ordinary sense" when
PNE was suspended. See Murray, 167 N.H. at 478-79.
Accordingly, we conclude that the trial court's denial of
the defendants' motion for JNOV on this ground was not
Tortious Interference with the Employee's Contract
defendants assert that the trial court erred when it declined
their request for "an instruction that required the jury
to find" that the non-compete provision in the
employee's contract with the plaintiffs "was backed
by consideration." The defendants argue that, without
such an instruction, "[t]he jury was conclusively
required to presume the validity of [the employee's]
non-compete agreement." They further argue that, in
fact, the non-compete provision lacked consideration and,
therefore, that "the trial court's refusal to
instruct the jury as requested was error because the jury
could have been misled into basing ...