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Law in the Marketplace: What to know about NH business litigation

For the Monitor
Published: 8/28/2021 9:20:38 PM

If you are a New Hampshire business owner, at some point in the history of your business you may have to sue a third party – perhaps a competitor, a supplier, a customer, an employee or an independent contractor; or you will have to defend your business in such a suit.

Below are several points that, taken together, will give you much of the basic knowledge you will need in facing the prospect of these suits.

■New Hampshire has three types of state courts – the Supreme Court, the Superior Court, and the Circuit Court. Each of these courts is exclusively entitled to handle specified types of cases.

■The Supreme Court handles appeals from the Circuit Court and the Superior Court, including appeals of business claims, and it handles certain other specialized matters.

■The Circuit Courts consist of three divisions – Probate, Family and District. Each of these divisions is entitled to exclusively handle certain specified types of case. The Probate Division handles, among other things, cases involving wills, trusts, estates, and involuntary commitments. The Family Division, handles, among other things, divorce, child support and domestic violence. The District Division handles, among other things, misdemeanors, landlord-and-tenant matters, and small business claims involving less than $7,500.

■The Superior Court (which is actually a group of 11 courts, each called a “Superior Court”) is entitled to handle all types of civil and criminal trials except those exclusively subject to the jurisdiction of the Circuit Courts. All ten New Hampshire counties have one or more Superior Courts. The ten New Hampshire counties are, in alphabetical order, Belknap, Carroll, Cheshire, Coos, Grafton, Hillsborough, Merrimack, Rockingham, Strafford and Sullivan. Nine of these countries have a single Superior Court. Hillsborough County has two

If you are considering making a business claim exceeding $7,500 or if you are facing such a claim, the claim will normally be brought in a Superior Court in the county in which you or the other party operate. Each such claim must be brought either in an “ordinary” Superior Court or in a special Superior Court “docket” called the “Business and Commercial Dispute Docket.” In this column, I’ll refer to this Docket column as the “Business Court.”

Whenever you are considering becoming a party to a contract involving significant financial or personal stakes, you should address in your contract the issue of how to resolve disputes that arise between the contract parties. The main options are mediation, arbitration, and either “ordinary” Superior Court litigation or Business Court litigation.

All judges in all of the Superior Courts are likely to be impartial in any business claim, and all of them are likely to be at least reasonably competent in handling business claims. However, the purpose of the Business Court is to handle business claims that are unusually complex. The parties to such disputes may try them in the Business Court (1) if all of the parties have agreed to the jurisdiction of that court; (2) if at least one of the parties is a business entity; (3) if no party is a consumer; and (4) if the dispute is one of the thirteen types of claims listed in the governing legislation. The most general type of permitted Business Court claim is a “complex dispute of a business or commercial nature.”

As readers will know, my law practice is focused on contract law in general and, in particular, on LLC law and tax and on forming LLCs and drafting operating agreements for prospective LLC members or managers. Because of the very high level of business claim expertise in the Business Court, I often advise my contract clients to provide for dispute resolution in their contracts in that court. I highly recommend to other business lawyers and their clients to consider doing the same.

If you’d like to learn more about the New Hampshire court system in general, click on Courts in New Hampshire – Ballotpedia. To learn more about the Superior Court Business and Commercial Docket, click on courts.state.nh.us/adrp/business/index.htm. To learn more about the Circuit Court Small Claims Court, click on courts.state.nh.us/adrp/business/index.htm.

(John Cunningham is a Concord, NH lawyer of counsel to McLane Middleton, P.A. His practice is focused on LLC formations, general business and tax law, advising clients under IRC section 199A, and estate planning. His telephone number is (603) 856-7172, his e-mail address is lawjmc@comcast.net, and the link to his website is www.llc199A.com.)

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