DerryNews.com, Derry, New Hampshire

September 28, 2011

Agreements need to be formal — or pay the consequences

About the law
Andrew Myers

My father and I started a business. But, whenever we make any money, he takes my share, saying he has to pay his bills and promising to give it back to me.

For example, when we made $10,000 he gave me $200 and kept the rest. That's how it goes. If we are 50-50, then he now owes me $20,000 and he won't pay me a dime. There was no contract between us saying what our shares were. Do I have a case against him?

When starting a business venture of any sort, it is always wise to formalize the arrangement with a partnership or LLC agreement, or some other valid documentation.

Based on the question, this wasn't done. There is a Uniform Partnership Act that would be imposed if this went to go to court. Under this law, RSA304-A in New Hampshire, after partners are repaid any capital contributions and advances to the partnership, they then share 50-50 in the profits.

If the two of you made the common mistake of filing an LLC Certificate of Formation, but not also adopting an LLC agreement defining your rights, then there's an LLC Act that applies.

Generally speaking, this law allocates profits and losses proportioned to the value of the contributions of the LLC members.

I assume you and dear old dad want to preserve the family relationship. So, hopefully you can work this out between yourselves, or potentially with mediation.

If not, the above laws provide a right to an accounting. This means you make a demand and, if there is no satisfaction, you file in Superior Court to enforce apportionment and distribution of your legal share.

What are some reasons for filing a habeas corpus?

Often brought by prisoners seeking release, habeas corpus is a mandate ordering prison officials to bring the inmate before the court for a determination of whether the person has been imprisoned lawfully and whether they should be released.

The petition must show that the court made errors of law or fact. When court action results in the loss of a constitutionally protected liberty interest, it may be collaterally attacked by way of petition for writ of habeas corpus. However, habeas corpus is not a substitute for an appeal. Literally, habeas corpus means "you have the body."

In one New Hampshire case, a convicted prisoner brought a writ of habeas corpus, also captioning it as a motion to correct an "illegal sentence."

He claimed his trial lawyer was ineffective for failing to protect his rights under double jeopardy and due process, for failing to object to the admission of a plea to a prior criminal charge, and on other grounds.

In State v. Pepin, the Supreme Court sent the case back to Superior Court to sort through the issues.

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Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.