2007-744, HOGAN FAMILY ENTERPRISES, LTD. v. TOWN OF RYE

The petitioner, Hogan Family Enterprises, Ltd. (Hogan),

Michael L. Donovan, of Concord, by brief, for the respondent.

for the petitioner. to press. Errors may be reported by E-mail at the following address: Gottesman & Hollis, PA, of Nashua (Anna Barbara Hantz on the brief),

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2007-744 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as shall be for private use only.

p. 2 assigns. Easement shall not give right of access to public and

drainage. applicable wetlands permits, if any, are obtained. permitted to review and comment on Town’s proposed plan for then executed the agreement.

settlement agreement within thirty days. recreation, limited to [Hogan] and its successors, heirs and

court on the subject lot, provided all ordinances are met and all NH DOT approval for such a system. [Hogan’s engineer] shall be would not be responsible to pay for Hogan’s engineering review, and the town with the assent of counsel for Hogan, added language clarifying that the town noting that the case had settled, and requiring the parties to file their were consistent with the notes of the town’s counsel. Counsel for the town, assented to the terms, the trial court signed an order, in the parties’ presence, comment upon the town’s proposed drainage plan, the terms of the agreement will also retain the right to use the parcel for agriculture and principal member of Hogan, and concluding that the parties understood and With the exception of the sentence allowing Hogan’s engineer to review and whereby the parties agree as follows: cut vegetation and trees in order to maintain [its] view. Hogan[] be negotiated by counsel. Hogan[] will retain the right to mow and months. 4. The parties will make a status report to the court in 12 agreement from the notes, which provided as follows:

3. The selectmen will not oppose the building of a clay tennis Boulevard at Wallis Sands State Beach and to seek the required property and direct drainage from the catch basins towards Ocean engineering work necessary to remove the pipe from the subject

settle. After reviewing the terms with the parties, including at least one Settlement Agreement was entered into between the parties . . . lot to a conservation organization acceptable to [it]. Language to 2. Hogan[] will grant a conservation easement over the subject

emailed his notes to her. Counsel for Hogan then drafted a written settlement

1. The Town in good faith and forthwith will commence the

his notes. The trial court advised the parties that they were not required to The undersigned acknowledge that on June 21, 2007 a trial court in chambers, and counsel for the town read aloud the terms from by the parties. Upon reaching an apparent agreement, the parties met with the

The next day, counsel for the town, at the request of Hogan’s counsel,

settlement, with counsel for the town maintaining notes of the terms agreed to During the trial, the parties, through counsel, negotiated a potential finalized under court supervision. We agree with the town.

p. 3 not drafted prior to the conclusion of the conference. While we observed in

counters that the settlement is excepted from the statute because it was

course,” the enforceability of the settlement in

because the chambers conference was not recorded, and the agreement was 121 N.H. 397, 398 (1981). on the record. surprise, mistake or duress. State v. Blomquist, 153 N.H. 216, 219 (2006); cf. Settle v. Settle, should be encouraged” irrespective of whether they are made in open court or in a judicial proceeding by the parties or their attorneys, and such stipulations N.H. at 360. “Indeed, courts generally look with favor upon agreements made frauds because it requires Hogan to convey a conservation easement. The town virtue in the stipulation itself,” but “from the control of the court.” Perley, 89 under court supervision.” Perley derived not “from any by the parties or their counsel in open court has long been usually a matter of subject to the statute of frauds. Perley that “[t]he entry of a decree or judgment upon a parol stipulation made

Hogan contends that the trial court’s supervision was insufficient

(1997); (2) is enforceable; and (3) should not be set aside upon grounds of

acceptance, consideration and mutual assent. (1938). Hogan argues that the settlement here is subject to the statute of grounds, the trial court granted the town’s motion. This appeal followed. Id.; see also Perley v. Bailey, 89 N.H. 359, 360 N.H. 726, 731 (1997). We have long excepted, however, settlements “finalized

question of law and fact.” A settlement requiring a party to transfer an interest in land is, generally,

civil matters. See id. at 416; Waters v. Hedberg, 126 N.H. 546, 552 (1985). agreement, we are mindful of the strong public policy favoring the settlement of and manifest an intent to be bound by them. Id. In reviewing a settlement settlement: (1) is not barred by the applicable statute of frauds, RSA 506:1 the parties have the same understanding of the agreement’s essential terms,

omitted). A valid and enforceable settlement, like any contract, requires offer, review the matter independently under a plain error standard.” Id. (citation erroneous. If, however, the court misapplies the law to its factual findings, we refused to produce its prior counsel based upon attorney-client privilege will not overturn the trial court’s ruling on a mixed question unless it is clearly allegation of undue pressure from its prior counsel to accept the settlement, moved to enforce the settlement. After a hearing, at which Hogan, despite its Poland v. Twomey, 156 N.H. 412, 414 (2007). “We “We review the trial court’s ruling that a settlement existed as a mixed

On appeal, Hogan argues the trial court erred by concluding that the

and moved to restore the matter to the trial docket. The town objected and Hogan, however, refused to execute the agreement, hired new counsel, not to be subject to the statute of frauds.

p. 4 cannot conclude that contrary findings of fact were compelled.

faith in the later negotiation of specific easement language. err by finding that the agreement had been sufficiently under its control so as assent, but merely imposed an obligation upon the parties to exercise good

on the extent of the contemplated conservation easement.

indication of fraud or that Hogan was under duress. Upon this record, we agreement. The trial court further found that, in its view, there was no 4 chambers, and that Hogan appeared to understand the nature of the

court. understood and agreed to such terms. Upon this record, the trial court did not render the obligation to convey the easement so indefinite as to reflect a lack of settlement upon such grounds rests within the sound discretion of the trial specifically reviewed each of the terms with Hogan and determined that Hogan aside upon the grounds of surprise, mistake or duress. Whether to set aside a BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred. contemporaneously memorialized by counsel for the town, and the trial court

conservation easement and its limitations were specifically discussed in Perley, 89 N.H. at 361. In this case, the trial court noted that the

easement was] to be negotiated by counsel,” the existence of this term did not Finally, we reject Hogan’s contention that the settlement should be set by counsel in the negotiations, the terms of the parties’ agreement were

minor details”). enforceable settlement. The record reflects the essential terms of the (2001) (contract may exist even if parties “contemplated further negotiations of nevertheless, the obligation of the parties and their counsel, and not the trial See Lower Village Hydroelectric Assocs. v. City of Claremont, 147 N.H. 73, 76 terms regarding future engineering review render the agreement unenforceable. Wolfeboro Railroad Co., 126 N.H. 176, 180 (1985). Nor do the additional minor

N.H. at 415. Although the agreement provided that the “[l]anguage [of the that the chambers conference be recorded. Moreover, Hogan was represented See Poland, 156

Nor did the trial court err by finding that the parties entered into an agreement contemplates future remedial actions by the parties. It is, understanding. This may particularly be appropriate where, as here, the or to otherwise reduce the terms to a contemporaneous memorandum of

N.H. 959, 964 (1981). In this case, there is no indication that Hogan requested

conferences may be to place the essential terms of the agreement on the record, We note that the better practice for trial judges presiding over settlement