Zile State of Nati Pampstiire

MERRIMACK, SS SUPERIOR COURT

iHearSafe, LLC
v.

Christine Ingemi, et al

NO. lo-C-5011

ORDER

Defendant Christine Ingemi has filed a Motion to Dismiss and a Motion for
Summary Judgment. For the reasons stated in this order, both motions are DENIED.

I. Background
This is an action by the Plaintiff iHearSafe, LLC ("iHearSafe") against Christina
Ingemi. The Plaintiff alleges that it entered into an Asset Purchase Agreement ("APA")
with the Defendant and her husband, Richard Ingemi. Pursuant to the APA, the
Plaintiff paid Defendant $1,000,000 of which $150,000 was deposited in Ocean Bank as
escrow. In connection with the APA, the parties entered into an employment agreement
in which the Defendant agreed she would be a full time employee and would devote her
entire time, best efforts and loyalty to the Plaintiff company. The employment
agreement also provided that the Defendant could be terminated for fraud,
insubordination and incompetence. The APA also provided that if the Defendant was
terminated for cause at any time before the second anniversary of the agreement the
Plaintiff would be entitled to a pro rata deduction of the $1,000,000 APA price.
Plaintiff alleges that Defendant was terminated for cause and that it is therefore entitled

to a refund of the closing amount of $741,606.67. The Defendant disputes these claims.

II. Background

The Defendant has filed a Motion to Dismiss, alleging that the action should be

dismissed because the action has been initiated under the authority and signature of Mr.

Dan Monfried who represented that a) he serves as an officer of iHearSafe, LLC; b) that

he made observations and accessed iHearSafe records; and c) that he signed a complaint

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Motion to Dismiss, a court must assume the truth of the plaintiffs allegations, and must

determine whether the allegations are reasonably susceptible of a construction that

would permit recovery. Bruzga v. PMR Architects, 141 N.H. 756, 757 (1997). A court

must consider all reasonable inferences from the writ in the light most favorable to the

plaintiff. Kentucky Fried Chicken, Inc. v. Collectromatic, Inc. , 127 N.H. 318, 320 (1985).

The Defendant's Motion to Dismiss is akin to a Motion for Summary Judgment,

because it compares the allegations in the declaration with extrinsic evidence, the

annual report of iHearSafe, LLC which shows that Mr. Monfried was not an officer nor a

director if iHearSafe, LLC as of March 12, 2009 and interrogatory answers indicating

that Mr. Monfried is not a director of the corporation. Indeed, the Defendant has made

the same claim as part of her Motion for Summary Judgment.

The Plaintiff points out that Mr. Monfried signed the iHearSafe application for

registration as a foreign LLC in his capacity as a manager of Hillcrest Management, LLC

which in turn is the manager of iHearSafe, LLC. An agreement produced by iHearsafe

establishes that Hillcrest is its manager and pursuant to Article 4, Section 3.1 of that
operating agreement, as manager of iHearsafe, Hillcrest is empowered to make all
decisions with respect to the management of the business and affairs of the company.
This language confers broad authority upon Hillcrest including the power to initiate and
prosecute legal action on the part if iHearSafe. Mr. Monfried signed the operating
agreement in his capacity of manager of Hillcrest. Moreover, pursuant to a manager's
certificate of iHearSafe, LLC dated January 3, 2008 also produced to the Defendant,
Daniel Monfried was listed as the sole manager authorized to execute and deliver on
behalf of Hillcrest, as the manager of iHearSafe, the APA and related documents to
which iHearSafe would become a party.
It is apparent from the foregoing that Mr. Monfried had authority to initiate the
lawsuit. But even if he were not theoretically authorized to do so when he verified the
complaint, it is of no consequence. There is no requirement under New Hampshire law
that a declaration attached to a writ of summons be executed under oath by any
particular person. Superior Rule 23 is satisfied, because the writ is signed and endorsed
by legal counsel authorized to act on behalf of the Plaintiff. Defendant's motion raises
form over substance, which is completely inconsistent with the traditions of New
Hampshire law. iHearSafe, LLC plainly believes it has a cause of action against the
Defendant, and has engaged counsel to vigorously prosecute its claims. There is simply
no basis for the Defendant's Motion to Dismiss, and it must be denied.
III. The Motion for Summary Judgment

Under RSA 491:8-a, in order to obtain summary judgment, the moving party
must show the absence of a triable issue fact and entitlement to judgment as a matter of
law. See, e.g., Johns-Manville Sales Corp. v. Barton, 118 N.H. 195, 197 (1978). Summary
judgment may be rendered only if the pleadings, depositions, answer to interrogatories

and admissions on file together with the affidavits filed show that there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a

matter or law. RSA 491:8-a III. When reviewing a motion for a summary judgment, the

court must consider the evidence in a light most favorable to the party opposing the

motion, in this case iHearSafe, and take all reasonable inferences from the evidence in

that party's favor. High Country Associates v. New Hampshire Insurance Company, 139

N.H. 39, 41 (1994).

In her Motion for Summary Judgment, Defendant once again seeks judgment

based on a supposed lack of authority on behalf of Mr. Monfried. For the reasons stated,

this argument must be rejected. The Defendant also argues that she did not breach the

employment agreement because the contract was too vague to be enforced. She notes in

the complaint that the claimed basis for the breach of the employment contract was that

she was "absent without permission or explanation from the company's headquarters".

Writ, paragraphs 12 and 13. Defendant argues, citing testimony of an employee of the

Plaintiff, that since Christine Ingemi served iHearSafe at a corporate management level

there was no obligation for her to seek permission to be absent from the iHearSafe

office. She goes on to argue that there is no term within the employment agreement that

obligated her to seek permission to be absent from the company premises and also

argues that the manner in which she was terminated constituted fraud.

There is no dispute that under the employment agreement Ms. Ingemi agreed to

be a full time employee of iHearSafe, devoting her entire time, undivided loyalty and

best efforts to the business of the company. This is hardly vague. Plaintiff has produced
evidence to support its position that Ms. Ingemi was frequently away from the office and
incommunicado , that she did not make a practice of regularly telling anybody at

iHearSafe where she would be on a particular day, and that her performance was
inadequate. It is apparent that material issues of fact exist which must be tried.
Finally, Defendant seeks summary judgment on the ground that iHearSafe or its
representatives fraudulently presented her with a materially different APA for her
signature on July 30, 2008 as compared with the draft she reviewed on July 29, 2008.
In order to prove fraud in the inducement, a party must establish that the other party
made a representation with knowledge of its falsity or with conscience indifference to
its truth and with the intention to cause another to rely on it. Caledonia, Inc. v. Trainor,
123 N.H. 116, 124 (1983). Fraud must be proved by clear and convincing evidence. Id.
In addition, the party seeking to prove fraud must demonstrate justifiable reliance.
Vanderstok v. Voorhees, 151 N.H. 679, 682 (2005); Snierson v. Scruton, 145 N.H.73, 77

(2000). The Plaintiff has produced evidence that no one representing or related to it
ever represented of the disputed language in the agreement would be removed. More
importantly, Ms. Ingemi has admitted that she did not read the APA that was presented
to her for signature. As a general rule, a party's failure to read a contract before signing
will not negate his or her duty to abide by that contract. See, e.g., Friar v. Sav-Amill,
LLC 2009 U.S. District Lexis 121981 * 12 (ND Miss 2009); University of Miami V.

Intuitive Surgical, Inc., 166 Fed Appx. 450, 453 (11th Circuit 2006). Under these

circumstances, there can be no doubt that at the very least, Plaintiffs Motion for
Summary Judgment cannot succeed.
SO ORDERED.

DATE Richard B. McNamara,

Presiding Justice

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