June 2019 - Snooze Alarm

by Richard W. Millar, Jr.

I remember when I was young, I had a Westclox alarm clock to jar me awake. I find it somewhat alarming—yes, I chose that word deliberately—to learn that these are now considered “vintage,” but I suppose that classifies me as well. For many years I have had, and, indeed, still have, a clock radio but with the diminishment of music stations and the rise of “talk” stations, morning babble is not altogether that pleasant a wakening experience.

I was recently given an Amazon Echo Dot. I can now instruct “Alexa” to wake me at whatever time I choose. I find a certain perverse pleasure in doing that as Alexa is the only woman (albeit virtual) who will obey my commands without question. Even our dog won’t do that. Instead of coming when I call her, she thinks I should chase her in circles around the dining room table. Perhaps that’s a metaphor . . . .

But, enough about my sleep problems. Let’s talk about someone else’s.

Like Joshua Mesmer’s.

Mr. Mesmer is, at least for the nonce, an attorney in New Hampshire practicing business litigation.

In 2012, Motostar Tire and Auto Products obtained a judgment against Mr. Mesmer’s client, Tires, Inc., for approximately $165,000. A payment plan had been agreed upon, but Tires defaulted, so Motorstar filed a motion for contempt. In connection with its contempt motion, Motostar served discovery and, based on responses, filed a petition to set aside an alleged fraudulent conveyance. That petition also included the owners of Tires and sought disgorgement of alleged improper corporate distributions to them.

Mr. Mesmer emailed a copy of the petition to Ms. Balles, one of the two owners, saying that he was drafting “an objection . . . and a motion to dismiss, to boot.”

When she did not receive the objections, Ms. Balles emailed him, and he answered that he was conducting further research, telling her: “[T]ry not to stress about this. We’re taking care of it.”

Except he wasn’t.

As the Professional Conduct Committee of the New Hampshire Supreme Court put it, “This began a chain of broken promises that Mr. Mesmer made to Ms. Balles concerning all aspects of the defense of Motostar’s suit, and lies he told her to prevent her from finding out that, in fact, he took no action, caused his clients to default, and allowed the entry of a default judgment.”

As the Committee succinctly also said, “Mr. Mesmer only came to life at the tail end of the proceedings” when he unsuccessfully tried to block a sheriff’s sale of the Balles’ personal assets.

Among the stories he told his clients, according to the Committee, was that the court was corrupt, which he corroborated by also falsely claiming that he had the Nashua Superior Court “in his pocket, since he and his firm litigate there on a near-weekly basis.” Apparently, the pocket had a hole in it, but I digress.

The Committee also found that he had made misrepresentations to the court and directed his clients to file “inaccurate” affidavits. Additionally, during the time he was lying to them about the work that he wasn’t doing, he billed them “well in excess of any remote approximation of [his] time . . . and then aggressively pursued payment from them.”

While Flip Wilson’s Geraldine excused her conduct by saying, “The devil made me do it,” Mr. Mesmer had his own unique excuse.

Sleep apnea.

That’s right: sleep apnea made him lie to his clients, overbill them, and lie to the court.

The Committee noted a paradox: “Indeed, though Mr. Mesmer was inattentive to many matters in this litigation, he remembered to bill his clients, and he remembered to make efforts to collect money from them that he had not earned.”

The Committee recommended a three-year suspension, with eighteen months stayed, plus costs. While the final result is unknown as this is written, Mr. Mesmer’s father and founding partner of his law firm reputedly vowed to appeal.

I think that would be a bad idea and he should just:

Let sleeping dogs lie.

Richard W. Millar, Jr. is Of Counsel with the firm of Friedman Stroffe & Gerard in Irvine. He can be reached at rmillar@fsglawyers.com.