STATE OF NEW HAMPSHIRE

_I

CARROLL COUNTY, S.S,

SUPERIOR COURT

Docket No:

212-2011-CV-00061

Edward Charles Furlong, III

v.
Randall F. Cooper, Esq.
and

Cooper Cargill' Chant, P .A. FIRST AMENDED COMPLAINT

NOW COMES Plaintiff, Edward Charles Furlong, III, appearing in his pro-se capacity, and for the First Amended Complaint against Defendants, alleges and states as follows: Plaintiff hereby files his claims for negligence (legal malpractice), breach of contract and breach of fiduciary duty against Attorney Randall Cooper and the law firm of Cooper Cargill Chant, P.A.
PARTIES
1.

Plaintiff Edward Charles Furlong, III is a resident of the State of New

Hampshire and a citizen of the United States of America. Plaintiff Edward Charles Furlong, III resides at 1455 U.S. Route 302, Bartlett, New Hampshire
03812 and may be served pleadings and/or process at that address or

by mail

service addressed to: Edward Charles Furlong, III, P.O. Box 447, Bartlett, N.H.
03812.

2.

Defendant Randall F. Cooper is an attorney who, since 1976, has been Defendant Randall F. Cooper is a

admitted to practice law in New Hampshire. 3.

partner of the New Hampshire law firm of Cooper Cargill Chant, P.A. Defendant Cooper Cargill Chant, P.A. ("Law Firm Defendant") is a

Professional Association organized as a law firm in 1978, pursuant to the laws of the State of New Hampshire. This Defendant maintains offices at 2935
110

White Mountain Hwy., North Conway, NH 03860 and at P.O. Box 157, Berlin, NH 03570. JURISDIC1ION AND VENUE 4.

Pleasant Street,

Personal jurisdiction is proper over Defendant Randall F. Cooper

because he is a citizen of, or resides in, the State of New Hampshire. 5. Personal jurisdiction is proper over Defendant Cooper Cargill Chant, P.A. because this firm transacted business with the Plaintiff in the State of New Hampshire upon being retained as Plaintiffs counsel and/or contracted to supply Plaintiff with legal services in the State of New Hampshire. 6. Venue is proper in this Court because Defendant Randall F. Cooper and

Defendant Cooper Cargill Chant, P.A. work or reside in Carroll County, State of New Hampshire and Plaintiffs cause of action for legal malpractice arose in Carroll Countv.

STATEMENT OF FACfS
7.

On November n, 2008, Defendant Randall F. Cooper addressed a letter

of Representation Agreement to the Plaintiffs business entities Lil' Man Snowmobile - Jetski Rentals, Inc., which letter proposed that Attorney Cooper and his firm, Cooper Cargill Chant, P.A., provide legal representation
2

to the

Plaintiff and his business entities Lil' Man Snowmobile - Jetski Rentals, Inc. "relative to continued use of roadway as it crosses the property of Bartlett Water Precinct to serving hoth the rear of your property and to the N.H. Bureau of Trails Snowmobile Trail system as it passes your property in Bartlett. " 8. TIle November
11,

2008 letter/agreement

described the scope of

representation

to "include initially attempting to negotiate a solution, and if

not bring suit in the Carroll County Superior Court." 9. On November 24, 2008, Plaintiff, in his individual capacity and as

President of til' Man Snowmobile - .Jetski Rentals, Inc., endorsed and agreed to the terms of the 10.
11/1 t/20081etter/agreement.

On December 22,2008, Attorney Randall F. Cooper, in his capacity as

Plaintiff's attorney, filed a civil action in Carroll County Superior Court, naming as Defendants, Bartlett Water Precinct, Town of Bartlett, and the United States of America. That case was docketed as number o8-E-160 in the Carroll County Superior Court and entitled: Lil' Man Snowmobile/ JetSki Rentals, Inc. and Edward Charles Furlong, III v. Bartlett Water Precinct, Town of Bartlett and the United States of America. 11. The United States removed Carroll County Superior Court Case Number

o8-E-160 to the United States Federal District Court, where the case was docketed as number 1:o8-cv-00516-SM. 12. On January 15, 2009, Plaintiffs' attorney filed a Notice of Voluntary

Dismissal as to the Defendant United States of America and simultaneously filed a motion to remand the case back to the Carron County Superior Court on the grounds that there was no longer a basis for federa1 subject matter jurisdiction. was granted. On April
1, 2009,

Plaintiffs' Motion to Remand to State Court

13.

Subsequent to retaining Attorney Randall F. Cooper, Plaintiff Edward

Charles Furlong, III discovered that Attorney Cooper had also represented Plaintiffs' competitor, Mr. Peter Gagne. Attorney Randall F. Cooper never volunteered the fact that he had and continued to represent Mr. Peter Gagne in matters that were adverse to Plaintiffs' business interests. 14.
On or about February 13, 2009, Attorney Randall F. Cooper counseled

Plaintiff Edward Charles Furlong, ITT to sign a "Temporary Access Agreement" which had been proposed by the Town of Bartlett and the Bartlett Water Precinct. 15 In spite of the fact that the proposed agreement was clearly not in the

best interests of the Plaintiff, and not in the best interests of Plaintiffs businesses, Attorney Randall F. Cooper essentially gave the Plaintiff false reassurances that executing the proposed agreement was an appropriate course of action.
16.

Plaintiff paid legal fees in the total sum of $36, 123.50 to Attorney

Randall F. Cooper's law firm, Cooper Cargill Chant, P.A. COUNT I: NEGLIGENCE/LEGAL MALPRA01CE
17.

The allegations contained in paragraphs

1 through 16

are incorporated

by reference as if fully set forth herein.

18.

An attorney-client relationship existed between Plaintiff and Defendant

Randall F. Cooper. 19.

An attorney-client

relationship existed between Plaintiff and Defendant

Cooper Cargill Chant, P .A.

20.

As a result of the attorney-client relationships between Plaintiff and

Defendants, each of the Defendants owed a duty of care and skill to the Plaintiff.

21.

An attorney exercising the knowledge, skin, and ability ordinarily

possessed and exercised by members of the legal profession in similar circumstances would have notified a prospective client of all possible conflicts of interest.
22.

Defendants neither advised Plaintiff of the conflict of interest regarding

Peter Gagne, nor presented Plaintiff with an opportunity to consent in writing to waiving such conflict, nor sought to withdraw from the representation.
23.

An attorney exercising the knowledge, skin, and ability ordinarily

possessed and exercised by members of the legal profession in similar circumstances would not have advised his client to sign an agreement forever foreclosing legal avenues of relief in the manner set forth by the "Temporary Access Agreement" executed on February 13, 2009. COUNT II: BREACH OF CONTRACf 24. The allegations contained in paragraphs
1through

23 are incorporated

by reference as if fully set forth herein. 25. Plaintiff entered into an agreement with Attorney Randall F. Cooper and

his firm, Cooper Cargill Chant, P.A., whereby Cooper Cargill Chant, P.A. and its respective partners, agents, and employees would represent Plaintiff and his business entities Lil' Man Snowmobile - Jetski Rentals, Inc. "relative to continued use of roadway as it crosses the property of Bartlett Water Precinct to serving both the rear of your property and to the N.H. Bureau of Trails . Snowmobile Trail system as it passes your property in Bartlett." 26. Implicit in the Law Firm Defendant's contractual undertaking to

represent Plaintiff is that the Law Firm Defendant, their respective partners, agents, and employees would exercise the knowledge, skill, and ability

ordinarily possessed and exercised by members of the legal profession in similar, circumstances. 27. The Law Firm Defendant breached their implied obligation because they failed to notify Plaintiff of the conflict of interest that existed regarding Peter Gagne, nor did the Law Firm Defendant present Plaintiff with an opportunity to consent in writing to waiving such conflict, nor did the Law Firm Defendant seek to withdraw from the representation 28. due to that conflict.

The Law Firm Defendant breached their implied obligation by providing

Plaintiff with false assurances concerning the "Temporary Access Agreement" and 'by counseling Plaintiff to sign a "Temporary Access Agreement" that was clearly not in the best interest of Plaintiff.
29.

By counseling Plaintiff to sign the February 13, 2009 "Temporary Access

Agreement", which agreement effectively foreclosed legal avenues of relief, Defendants acted in a willful, wanton, and malicious manner with the intention of making it more difficult for Plaintiff to assert and pursue a legal malpractice action against them. 30. Plaintiff is therefore entitled to punitive damages against Defendants to

the fullest extent permitted under the Jaws of New Hampshire. COUNT III: BREACH OF FIDUCIARY DUlY / CONFLICT OF INTEREST 31. The allegations contained in paragraphs
1 through

30 are incorporated

by reference as if fully set forth herein. 32. At all relevant times Defendants acted in a fiduciary relationship to

Plaintiff as his attorney. 33. Defendants fiduciary duty to Plaintiff included the duty of loyalty to

ensure they were free of conflicts of interest in representing Plaintiff.

----------,,--,

--_.-

34.

Defendants neither advised Plaintiff of the conflict of interest regarding

Peter Gagne, nor did the Law Firm Defendant present Plaintiff with an opportunity to consent in writing to waiving such conflict, nor did the Law Firm Defendant seek to withdraw from the representation due to that conflict.

WHEREFORE, Plaintiff demands judgment against Defendants, jointly and severally, as follows: a. Compensatory damages in an amount within the jurisdictional limits of this Court and to be determined by the jury trying' this action; b. Punitive damages to the fullest extent permitted by the laws of the

State of New Hampshire; c. Plaintiff is entitled to recover $36, 123.50 in legal fees paid to the

Law Firm of Cooper Cargill Chant, P.A.;

d.

Attorneys' fees and costs incurred by Plaintiff in connection with

prosecuting this action; e. f. Prejudgment interested as permitted by law; and Such other and further relief as this Court deems just and proper. Respectfully submitted,

Dated: May 23, 2011 Edward Charles Furlong, III 1455 US Route 302 P.O. Box 447 Bartlett, NH 03812 (603) 387-9014

ecfurlong@roadrunner.com

CERTIFICATE OF SERVICE I, Edward Charles Furlong, hereby certify that on this 23rd day of May 2011, I served copies of the foregoing First Amended Complaint by mailing two copies via First Class Mail to the following Counsel of Record: John C. Kissinger, Jr., Esquire Nelson, Kinder, Mosseau & Saturley, P.C. 99 Middle Street Manchester, NH 03101 Edward Charles Furlong, III