Clipper Affiliates3/15/1994
This is an appeal by the plaintiff, Clipper Affiliates, Inc. (Clipper), from the decision of the Superior Court (Dickson, J.) granting the defendant's, Samuel L. Checovich, motion to dismiss. We affirm in part, reverse in part, and remand.
Clipper, through its affiliated companies, operated various types of living facilities for elderly persons. Checovich was employed by Clipper from early 1984 through June 30, 1988, managing its financial operations. On January 8, 1988, Clipper's president, William E. Gilmore, Jr., discharged Checovich. Pursuant to the terms of the discharge Checovich agreed to remain employed until June 30, 1988. As compensation for remaining with the company and helping to train his successor, Checovich was given a $20,000 loan, to be repaid by returning to Clipper two $10,000 bonuses for satisfactory work performance in March and June. Although Clipper paid the March bonus and Checovich applied it to repay one-half of the loan, Checovich never received the anticipated $10,000 in June. Consequently, Clipper alleges that $10,000 of the loan remains outstanding.
Checovich currently operates Huntington Common, a retirement community in Kennebunk, Maine, similar to those run by Clipper. His partner in the venture is Douglas Stockbridge, Gilmore's nephew, also a former Clipper employee.
Gilmore, disgruntled because Checovich, three days after his termination, provided Gilmore's then estranged wife, Nancy, with corporate financial information for use in her divorce proceedings, sued Checovich in the name of the company for breach of contract and breach of employment/fiduciary duties. Checovich, subscribing to the view that the best defense is a good offense, counterclaimed, alleging abuse of process, intentional interference with advantageous business relations, and breach of contract for nonpayment of wages for his final two weeks employment.
At the jury-waived trial, Clipper attempted to prove that Checovich, Stockbridge, and the intervenor, Kathleen Sternenberg, worked together in the development of Huntington Common during the term of Checovich's employment with Clipper. It also alleged that the disclosure to Nancy Gilmore, even though done after Checovich's employment with Clipper was terminated, breached both Checovich's employment contract and his fiduciary duty to the company. At the close of Clipper's evidence, Checovich moved to dismiss, arguing that Clipper had failed to meet its burden of proof. The trial court granted Checovich's motion, heard evidence on his counterclaim, and ruled for him on all three counts. Clipper's motion to set aside the verdict on the counterclaim was denied. This appeal followed. Clipper concedes that the verdict for Checovich on count III of his counterclaim, seeking payment for his final two weeks of employment, was proper, but appeals the ruling for Checovich on the other two counts of his counterclaim. Clipper also argues that the trial court erred: (1) in ruling that Checovich breached neither his employment contract nor his fiduciary duty to Clipper; (2) in awarding a $10,000 bonus to Checovich; (3) in certain evidentiary rulings; (4) in failing to allocate the burden of proof to Checovich on his counterclaim; and (5) in awarding damages, fees, and costs.
The standard of review for a motion to dismiss at the close of the plaintiff's case in a jury-waived trial simply stated is that we will not set aside the trial court's findings of fact unless they are clearly erroneous and will not reverse the dismissal unless it is inconsistent with the findings or contrary to law. Renovest Co. v. Hodges Development Corp., 135 N.H. 72, 78, 600 A.2d 448, 452 (1991).
Clipper first argues that C
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