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Elhannon, LLC v. F.A. Bartlett Tree Expert Co.

United States District Court, D. Vermont

November 19, 2018

ELHANNON LLC, et al. Plaintiffs,
v.
THE F.A. BARTLETT TREE EXPERT Company, Defendant.

          OPINION AND ORDER

          William K. Sessions III District Court Judge

         Now before the Court is Defendant's motion in limine to permit Defendant to introduce evidence on cross-examination of prior lawsuits and claims involving Plaintiffs' principal, D. James Sutton. For the reasons set forth below, Defendant's motion is denied.

         Background

         A. Factual Background

         This case arose from a contract and fraud dispute between Plaintiffs Elhannon Wholesale Nurseries, LLC; Elhannon Wholesale Nurseries, LLC; and Elhannon Wholesale Nurseries, Inc. (collectively “Elhannon”) and Defendant F.A. Bartlett Tree Expert Company (“Bartlett”). Bartlett originally filed an action in small claims court and Elhannon subsequently filed this case. Elhannon's principal allegation is that Bartlett failed to perform under a series of contracts entered into between Elhannon and Bartlett, for Bartlett to design and implement a pest management program for Elhannon's entire tree nursery. Elhannon alleges that Bartlett employees underserviced the nursery, leading to a large scale outbreak of disease and insects on its trees; that Bartlett applied chemicals that were not approved for use in Elhannon's nursery in order to attempt to control an incipient outbreak; and that Bartlett falsified its records to give the impression that it was doing more work at Elhannon than it actually performed.

         The Amended Complaint alleges six causes of action: breach of contract, negligence, negligent misrepresentation, intentional misrepresentation/fraud, fraud in the performance, and violation of New York's General Business Rule. ECF 27.

         B. Other Sutton Fraud Claims

         Bartlett originally moved for an order permitting them to cross-examine Elhannon's principal D. James Sutton (“Sutton”) about five prior and currently pending lawsuits and one additional incident concerning fraud allegations which Sutton had reported to the police. ECF No. 161. Bartlett later filed a supplemental pleading describing another Sutton lawsuit they wish to admit. ECF 213. Together, these six lawsuits and one additional police report are referred to as “Other Sutton Fraud Claims.” They are described below.

         1. Employee check kiting and payroll fraud reported to the police

         In 2006, Felicity Purzycki (then Harrington), who had just started working at Elhannon, told Sutton that she believed two employees were stealing from the company and involved in a check kiting and payroll fraud scheme. ECF 172-2 at 2. After reviewing the company's accounting records, Sutton reported this misconduct to the police. Id. According to Sutton's deposition, one employee confessed to the police. ECF 161-1 at 3. These allegations did not result in any criminal charges. Id. at 6.

         2. Crow & Sutton Associates, Inc. v. C.R. Klewin Northeast, LLC et al.

         In this case, Crow & Sutton Associates (“C&S”), an entity for which Sutton serves as Chief Executive Officer, was a subcontractor on a construction project in Connecticut. Crow & Sutton Associates, Inc. v. C.R. Klewin Northeast, LLC et al., No. HHDX04CV054016823S, 2010 WL 2573954 (Conn. Sup. Ct. May 21, 2010). C&S alleged that it did not receive all payment owed. Id. C&S brought multiple claims including contract-based claims under a payment bond, misrepresentation claims, and violations of Connecticut's Unfair Trade Practices Act. Id. Some claims were found to be time-barred, and others were defeated on summary judgment. Id.

         3. Sutton v. Barriere, Sup. Ct., Rensselaer County

         This case concerns a dispute between Mr. and Mrs. Sutton and their attorney. The Suttons became embroiled in a surety dispute with their surety company in July 2000. ECF No. 213-3. They retained an attorney to represent them in an action against their surety company. Id. During that action, there was disagreement over whether certain accounts should be placed into escrow. Id. At the conclusion of that lawsuit, they brought suit against their attorney about whether those accounts should have been placed in escrow. Id. The Suttons brought claims for fraud, ...


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