2007-163, DONNA RICHARD v. GOOD LUCK TRAILER COURT, INC. & a.

No. 2007-163 Rockingham

kind exchange” law, see

real estate in Haverhill, Massachusetts. In accordance with the federal “like-

In the spring of 2004, the plaintiff liquidated two pieces of investment

, of Bradford, Massachusetts (Thomas K., of Salem (Joseph L. Hamilton faith. We affirm.

either a contract for the sale of real property or an implied covenant of good

potential replacement property. designated defendant Good Luck Trailer Court, Inc. (trailer court) in Salem as

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

defendants, Good Luck Trailer Court, Inc. and George Tareila, did not breach entered after a bench trial in the Superior Court (McHugh, J.) ruling that the BRODERICK, C.J. The plaintiff, Donna Richard, appeals an order

and orally), for the defendants. Hamilton Law Offices, P.L.L.C. on the brief

MacMillan on the brief and orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: MacMillan Law Offices

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as breach of an implied covenant of good faith and fair dealing. Following

p. 2 The plaintiff filed suit for breach of her purchase and sale agreement as

September 20, the tenants’ association secured financing for the transaction. and sale agreement with the tenants’ association for $1,800,000. On or about

before September 16, 2004.” On September 16, Tareila executed a purchase

tenants’ association] and will be selling the mobile home park to [it] on or “[a]s required by RSA 205-A:21, we have negotiated in good faith with [the 8, defendants’ attorney sent correspondence to plaintiff’s counsel stating that

that the plaintiff should not plan on a closing on September 8. On September

that the tenants’ association might be filing a modification to their offer and However, later that same day, defendants’ attorney informed plaintiff’s counsel association detailing numerous reasons why their offer was not accepted.

Defendants’ attorney then faxed correspondence to counsel for the tenants’

to confirm that Tareila had decided to proceed with the sale to the plaintiff.

On September 3, defendants’ attorney faxed a letter to plaintiff’s counsel

as soon as possible.

and told her that he had decided to sell the property to her and wanted to close

tenants’ association. On September 2, Tareila telephoned the plaintiff again declined, because she thought a new bid might trigger a new notice date to the could outbid the tenants so that he could sell the property to her. She

“wonder[ed] out loud” during the telephone conversation whether the plaintiff

September or mid-October, the offer was unacceptable to him. Tareila notice but, with no guarantee of financing and a closing date proposed for late tenants’ association had made an offer in response to the RSA chapter 205-A

On August 31, Tareila informed the plaintiff by telephone that the

any rights to purchase any or all assets hereunder.” accordance with RSA 205-A and inform BUYER of any tenants having exercised In addition, the agreement provided that “SELLER will notify all tenants in

tenants when mailed and all return receipts received by SELLER. with copies of all notices sent and proof of mailing and receipt by notification process immediately. SELLER will provide BUYER

requirements of RSA 205-A. SELLER to begin RSA 205-A

agreement shall be extended to a date that complies with the 205-A regulating the sale of mobile home parks. If necessary, this However, the closing date is contingent upon compliance with RSA

[t]ransfer of title shall occur on or before September 10, 2004 . . . .

agreement for its sale for $1,800,000. The agreement provided that director and shareholder of the trailer court, signed a purchase and sale

On July 1, 2004, the plaintiff and defendant Tareila, the primary officer, purchase. If during the notice period, the tenants decide to make

p. 3 shall negotiate in good faith with the tenants concerning a potential

from the tenants or a tenants’ association, if any, and the owner manufactured housing park owner shall consider any offer received II. During the notice period required under paragraph I, the

. . . .

acceptable offer.

purchased and the price, terms and conditions of the

offer which sets forth a description of the property to be park. This notice shall include a copy of the signed written and conditions for which the park owner intends to sell the

unless they are erroneous as a matter of law.” Krigsman v. Progressive N. Ins. unsupported by the evidence and we will affirm the trial court’s legal rulings

the park owner has received to sell the park or the price, terms

“We will affirm the trial court’s factual findings unless they are

(2) Of the price, terms and conditions of an acceptable offer

tenants; and (3) in failing to award her any damages. provisions of RSA 205-A:21 commanded a sale of the trailer park to the

park; and (1) That the owner intends to sell the manufactured housing

implied covenant of good faith and fair dealing; (2) in finding that the

(a) To each tenant: 3

manufactured housing park without first giving 60 days’ notice:

find that the defendants breached her purchase and sale agreement and an On appeal, the plaintiff argues that the trial court erred: (1) in failing to

unconditional acceptance of any offer for the sale or transfer of a

decision to sell the property to the tenants was not made in bad faith.

I. No manufactured housing park owner shall make a final

RSA 205-A:21 (Supp. 2007) provides:

to sell the trailer court to them. The trial court also ruled that the defendants’ 205-A:21, the trial court concluded that the defendants had no alternative but 205-A. Because the tenants had availed themselves of their rights under RSA

Life Ins. Co., 130 N.H. 345, 348 (1988). Co., 151 N.H. 643, 645 (2005); see Realco Equities, Inc. v. John Hancock Mut.

and sale agreement, which was conditioned upon compliance with RSA chapter a bench trial, the trial court ruled that there was no breach of the purchase counsel conceded that this latter fax did not promise a sale to the plaintiff.

p. 4 the status of negotiations with the tenants’ association. Indeed, plaintiff’s the fax sent to plaintiff’s counsel on September 3 was to keep him posted as to defendants] go forward with the first contract.” He testified that the purpose of

defendants] thought was necessary under the statute, or call it off and let [the

negotiating stance with [the tenants] in order for them to do what [the defendants’ attorney testified that such language “was put in as part of [his] “we will be proceeding with the sale to the first purchaser next week,”

written rejection of the tenants’ association’s offer on September 3, stating that

under the statute to negotiate in good faith with them.” As for the defendants’ made an offer to purchase the trailer court, the defendants “had an obligation Defendants’ attorney testified at trial that after the tenants’ association

breach.” We disagree.

to consummate the deal with her and their refusal to do so resulted in a and revived the agreement with the Plaintiff [on September 3], [were] obligated was ineffective. Thus, the plaintiff argues, the defendants, “having reaffirmed

plaintiff later that day, their withdrawal from the purchase and sale agreement

maintains, when the defendants changed their mind about closing with the compliance [with] the notice requirements of the statute.” Accordingly, she that the tenants’ offer was rejected, this notice “effectively acknowledged

attorney faxed correspondence to counsel for the tenants’ association advising

The plaintiff first argues that, on September 3, when defendants’

to comply with RSA 205-A:21, I.

deemed to be a defense to an action for damages based on failure

II. Lack of knowledge of this section by a park owner shall not be

transfer in any court proceedings. . . . such noncompliance constitute grounds to set aside a sale or

shall not affect the validity of any sale or transfer of title nor shall

A:21 and the failure by a park owner to comply with said section constitute the sole and exclusive remedy for violation of RSA 205percent of the total sales price. . . . This civil penalty shall

shall be liable to the tenants in the amount of $10,000 or 10

transfers a park and willfully fails to comply with RSA 205-A:21 I. The owner of a manufactured housing park who sells or

RSA 205-A:22 (2000) provides:

necessary, to obtain financing for the purchase. tenants have a reasonable time beyond the 60-day period, if

shall be evidenced by a purchase and sale agreement; however, the an offer to purchase the manufactured housing park, such offer parties will act in good faith and deal fairly with the other.” Seward Constr. Co.

p. 5 “In every agreement there exists an implied covenant that each of the

parties, the purchase and sale agreement dated July 1, 2004.”

reaffirms or changes any of the language in the only writing signed by these

and the mere fact that he expressed the desire to sell to the plaintiff in no way

disclosed the notice to purchase from the tenants as soon as it was received, of their dealings with the plaintiff, the trial court found that “[t]he defendant her.” In concluding that the defendants did not act in bad faith in any aspect

request for an expedited closing, the Plaintiff claims that he was now bound to

of that fact, as well as the notification to the Tenants[’] counsel of same and the the Defendants had decided to reject the Tenants’ offer and advised the Plaintiff warranty of good faith and fair dealing. Specifically, she contends that “[o]nce

The plaintiff also argues that the defendants breached an implied

of contract with the plaintiff. defendants’ sale of the trailer court to the tenants’ association was not a breach

We hold that the record supports the trial court’s conclusion that the

plaintiff that there was a possibility that her transaction would not go through.

familiar with the requirements of RSA chapter 205-A and that he advised the negotiate in good faith with the tenants. Plaintiff’s counsel testified that he was not purchasing the property and that the statute required the defendants to

chapter 205-A made the sale of the trailer court contingent upon the tenants

negotiated with them as required under the statute and ultimately sold the

agreement. Furthermore, the plaintiff testified that she was aware that RSA but, rather, was an event expressly contemplated in the purchase and sale trailer court to the tenants’ association did not constitute a breach of contract, and, upon receiving an offer from the tenants’ association, his attorney

parties’ agreed-upon common purposes and justified expectations.” Centronics

by the purchase and sale agreement. The fact that the defendants sold the agreement containing a requirement that he comply with RSA chapter 205-A discussion regarding breach of contract, Tareila signed a purchase and sale Corp. v. Genicom Corp., 132 N.H. 133, 140 (1989). As set forth above in the

with common standards of decency, fairness and reasonableness, and with the performance is better understood simply as excluding behavior inconsistent v. City of Rochester, 118 N.H. 128, 129 (1978). “[T]he obligation of good faith

obligation to comply with the requirements of RSA chapter 205-A, as required the defendants and the tenants’ association consistent with the defendants’ between August 31 and September 3, 2004, represented negotiations between

of each party’s responsibility.” Town of Allenstown v. National Cas. Co.

RSA 205-A.” The record establishes that the correspondence that took place

accomplish particular results, and those commitments are the central measure “Contracts are . . . specific agreements to take specific steps to

plaintiff and Tareila specifically made closing “contingent upon compliance with F.3d 229, 234 (1st Cir. 1994). The purchase and sale agreement between the

p. 6 owner with the obligation to consider the tenant offer and to negotiate in good

opportunity for the tenants to make an offer and, in such event, charges the notice of price, terms and conditions, RSA 205-A:21, II envisions an “After the formal notice provisions in RSA 205-A:21, I, which include

following notice. upon the tenants not making a comparable offer within the sixty-day period offer to purchase a manufactured housing park by a third party be conditioned

with them in good faith. Thus, at a minimum, the statute requires that any

Affirmed

requires that the park owner consider an offer from the tenants and negotiate

argument that the trial court erred in failing to award her any damages. into a purchase and sale agreement with a third party. The statute also park a right to make an offer to purchase the park after the owner has entered party.” RSA chapter 205-A clearly provides tenants of a manufactured housing

Because of our holding, we need not address the plaintiff’s final

so long as his actions were in good faith.” sell to its tenants if they make an offer relatively similar to that of a third

would be free to sell the park to either a third party or the Tenants Association, noting that “[n]owhere in RSA 205-A:21 does it provide that a park owner must the statute required a sale of the trailer park to the Tenant’s Association,” The plaintiff also argues that the trial court erred “by determining that

requirements of the statute are met, “it would appear that [the park owner] agreement to the owner. Indeed, as the plaintiff concedes, so long as the period expired, the tenants’ association forwarded a purchase and sale

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred. with the statute. The plaintiff does not dispute that before the sixty-day notice court’s ruling that the defendants did not act in bad faith. made a competitive offer within the sixty-day notice period. We affirm the trial that the defendants might sell the trailer court to the tenants’ association if it

trial court erred in so concluding; the transaction that occurred here complied.

agreement, however, the plaintiff’s “justified expectations” necessarily included

A:21 “required” a sale to the tenants’ association in this case or whether the v. Barrett, 137 N.H. 203, 206 (1993). We need not decide whether RSA 205-

sell the park to the plaintiff.” Based upon the written purchase and sale expired. The defendant was genuine in these discussions, he truly wanted to transaction as soon as possible after the 60 day tenant notice provision

conversations were cordial and designed towards completing the real estate trailer court to them. The record supports the trial court’s findings that “[a]ll