STATE OF NEW HAMPSHIRE

CARROLL COUNTY, S.S,

_I

SUPERIOR COURT

Docket No: 212-2011-CV-00061

Edward Charles Furlong, III

v.Randall F. Cooper, Esq.

andCooper 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 1455U.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

admitted to practice law in New Hampshire. Defendant Randall F. Cooper is a

partner of the New Hampshire law firm of Cooper Cargill Chant, P.A.

3. 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

White Mountain Hwy., North Conway, NH 03860 and at 110 Pleasant Street,

P.O. Box 157, Berlin, NH 03570.

JURISDIC1ION AND VENUE

4. 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 to the

2

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 11/1t/20081etter/agreement.

10. 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. On April 1, 2009, Plaintiffs' Motion to Remand to State Court

was granted.

• 3

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.

4

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

5

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 due to that conflict.

28. 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 1through 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.

6

- ----------,,--, --_.-

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. Prejudgment interested as permitted by law; and

f. Such other and further relief as this Court deems just and proper.

Respectfully submitted,

Dated: May 23, 2011Edward Charles Furlong, III1455 US Route 302P.O. Box 447Bartlett, NH 03812(603) 387-9014ecfurlong@roadrunner.com

7

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., EsquireNelson, Kinder, Mosseau & Saturley, P.C.99 Middle StreetManchester, NH 03101

Edward Charles Furlong, III

8