Today the court granted Wolfeboro’s long argued motion to amend it’s original complaint to include allegations of fraud and seek treble damages. Wolfeboro was denied the new claim of Fraud in count VI because it “failed to allege all elements of a fraud claim”. The new claim of Fraudulent Misrepresentation in count VII was allowed, as was the associated request for consideration under RSA 358-A for treble damages.
This ups the ante somewhat and increases the potential exposure for Wright-Pierce.
As I read the ruling, the court’s decision isn’t based on the merits of the allegations except to the extent that they are plausible and if true would prove the elements of the count as a matter of law. (That’s why count VI Fraud was rejected. The term is futile meaning even if true, it doesn’t address all of the elements necessary.)
There were some assertions by Wright Pierce (and Wolfeboro) that were questioned in the back and forth of objection, reply, surreply, etc. In what appears to be a sarcastic footnote, the court offered that they would consider the merits of what Wright-Pierce characterizes as “obvious” in the context of a request for summary judgement. That seems unlikely given the reciprocal risks.
So now there are ten weeks or so until the Nov 1 deadline for completion of discovery and arbitration. If there is no arbitrated settlement, presumably the following three months will be dedicate to preparation for trial in February 2014.
I suspect that with these new stakes Wright Pierce will be more inclined to settle and Wolfeboro’s rapidly depleting legal budget will provide equal incentive to them.