The trial court's post-liability findings establish that the defendants' breach was not material as a matter of law. Whether a breach of contract is material is a question of fact, and we will uphold the trial court's findings of fact and rulings of law unless they lack evidentiary support or constitute a clear error of law. Ellis v. Candia Trailers & Snow Equip., 164 N.H. 457, 466, 58 A.3d 1164 (2012). "[F]or a breach of contract to be material, it must go to the root or essence of the agreement between the parties, or be one which touches the fundamental purpose of the contract and defeats the object of the parties in entering into the contract."
"[F]or a breach of contract to be material, it must go to the root or essence of the agreement between the parties, or be one which touches the fundamental purpose of the contract and defeats the object of the parties in entering into the contract." Ellis v. Candia Trailers & Snow Equip., 164 N.H. 457, 467, 58 A.3d 1164 (2012)(quoted in Foundation for Seacoast Health v. Hospital Corp. of Am., 165 N.H. 168, 182–83, 71 A.3d 736 (2013)). A breach is material if:
The New Hampshire Supreme Court has stated that "[a] breach is 'material' if a party fails to perform a substantial part of the contract or one or more of its essential terms or conditions, the breach substantially defeats the contract's purpose, or the breach is such that upon a reasonable interpretation of the contract, the parties considered the breach as vital to the existence of the contract." Ellis v. Candia Trailers & Snow Equipment, 164 N.H. 457, 467 (2012) (emphasis omitted); see also Restatement (Second) of Contracts § 341 (1981). The purpose of the Contract is set forth in its title; it is an "Agreement for Sale of Stock and Resolution of past Management."
Although the Court cannot locate a pertinent Mississippi case on the subject, other state supreme courts have found violations of noncompete clauses to be material breaches. See, e.g., Van Oort Constr. Co., Inc. v. Nuckoll's Concrete Serv., Inc., 599 N.W.2d 684 (Iowa 1999); Ellis v. Candia Trailers & Snow Equip., Inc., 58 A.3d 1164 (N.H. 2012) (finding that the noncompete agreement was “vital to the existence of the contract” and that a breach thereof “went to the heart of the transaction and constituted a material breach”); see also Gary's Implement, Inc. v. Bridgeport Tractor Parts, Inc., 702 N.W.2d 355 (Neb. 2005) (finding that violation of a noncompete agreement could “excuse or reduce payment” and remanding the case for factual resolution of whether such breach occurred). III.
" To determine whether a transaction is personal and therefore not part of trade or commerce covered by the CPA, the court must "'analyze the activity involved, the nature of the transaction, and the parties.'" Rowe v. Condodemetraky, No. 2016-0292, 2017 WL 1367208, at *2 (N.H. Feb. 15, 2017) (quoting Ellis v. Candia Trailers & Snow Equip., 164 N.H. 457, 465 (2012)). "The New Hampshire Supreme Court has not decided whether the Consumer Protection Act applies to employment disputes" although allegations of a mere breach of a contract do not state a claim under the CPA. Campbell v. CGM, LLC, No. 15-cv-088-JD, 2017 WL 78474, at *12 (D.N.H. Jan. 9, 2017) (citing Romano v. Site Acquisitions, Inc., No. 15-cv-384-AJ, 2016 WL 50471, at *3 (D.N.H. Jan. 4, 2016)).
While an employment relationship is not subject to the CPA, the business relationship in which Chris was induced to close Intellinet and bring his business to CGM based on promises of a certain salary and bonuses may be a transaction between entities engaged in business and transacting in a business context. See Ellis v. Candia Trailers & Snow Equip., Inc., 164 N.H. 457, 465-66 (2012). While an ordinary breach of contract claim does not show a violation of the Act, "a defendant who induces the plaintiff to enter a contract based on a knowing misrepresentation of the promisor's intent to perform under the contract violates the Consumer Protection Act."
"'Rescission is an equitable remedy the granting of which is always a matter within the sound discretion of the trial court, depending upon the circumstances of each particular case.'" Faiella v. Green Tree Servicing LLC, No. 16-CV-088-JD, 2016 WL 4530452, at *1 (D.N.H. Aug. 29, 2016) (quoting Ellis v. Candia Trailers & Snow Equip., Inc., 164 N.H. 457, 462 (2012)). In order to rescind a transaction, "'the court must determine that the respective parties can be returned to the status quo.'"
"Rescission is an equitable remedy the granting of which is always a matter within the sound discretion of the trial court, depending upon the circumstances of each particular case." Ellis v. Candia Trailers & Snow Equip., Inc., 164 N.H. 457, 462 (2012) (internal quotations omitted). Before a court can rescind a transaction, however, "the court must determine that the respective parties can be returned to the status quo."
Lucy J. Karl, Esq.Found. for Seacoast Health v. Hosp. Corp. of Am., 165 N.H. 168, 181-82 (2013) (internal quotation marks omitted) (quoting Ellis v. Candia Trailers & Snow Equip., 164 N.H. 457, 467 (2012)). Failure to incur the relevant expenses would surely constitute a material breach of the OA under all three of the Seacoast Health tests.
Restitution, however, is not a separate cause of action under New Hampshire law and is only a remedy for unjust enrichment. See, e.g., Ellis v. Candia Trailers and Snow Equip., Inc., 58 A.3d 1164, 1168 (2012) ("In New Hampshire, a plaintiff is entitled to restitution for unjust enrichment" if the plaintiff proves his claim.) (internal citation and quotation marks omitted).