Someone posted a comment to yesterday’s post pointing out that WP’s answer to the Amended Complaint contained a counterclaim. The author did not identify him/herself and so, in keeping with the blog comment policy, the comment was not published with the post, but here is what it said.

I am no lawyer, but Wright-Pierce filed counterclaims against the Town. That would make the ‘lawsuit’ also “against the government unit”, no? I think Dave Owen has it wrong and you should try again to get the settlement agreement.

The counterclaim in WP’s response is:

WHEREFORE, Wright-Pierce respectfully requests that the Amended Verified Complaint be dismissed with prejudice and judgment entered in Wright-Pierce’s favor on the merits, and that it be awarded costs and attorneys’ fees, and that Wright-Pierce be granted such further relief as this Court may deem just and proper.

Now you may think this is just the boilerplate included in every response of this type, and that’s probably true.  Nevertheless, it is a claim against the town.  But more to the point, there is a distinct possibility that the settlement addresses this claim. Currently, the lawsuit is frozen with two motions pending:

1.  A motion by the town for treble damages and attorney fees.
2.  A motion by Wright-Pierce to dismiss for lack of subject matter jurisdiction.

The settlement was no doubt driven by the potential consequences of both motions.  Consider if the motion to dismiss had been granted.  WP had said in their answer to the amended complaint there was a lack of jurisdiction and that the case should be dismissed for improper venue.  So they would have been seeking fees and costs for defending an action that was filed in the wrong venue by Wolfeboro.  If the case is settled with such a motion still pending, lacking a judgement in Wolfeboro’s favor, it is possible that WP could request fees and costs.

We all know that is improbable, but it is possible, and as such, the settlement agreement may specifically addresses that claim.  In that event, not only would there be a legitimate argument that this is a settlement of a claim against the town, it would be supported by the settlement document itself.

I’ve filed another RTK request based on RSA 91-A:4,XI.  This may be quicker and easier than hiring a lawyer who specializes in RTK law.  In ant event, it will provide a more solid basis for a petition to the Superior Court should it come to that.

The blog has received anonymous unsolicited information in the past.  Sometimes the source and/or authenticity of the information or documents cannot be determined, so it can’t be used.  In this case, those issues don’t apply.  This comment has been a great help and thanks to the person who sent it in.